The passing of the Incapacitation Law in March abused the Knesset’s constitutional authority to improve Prime Minister Benjamin Netanyahu’s personal legal situation, Attorney-General Gali Baharav-Miara said on Tuesday in an official response to a petition against the law.
This would be the first time that the Attorney-General would sanction the striking down of a Basic Law, the original petitioner, the Movement for Quality Government in Israel (MQG) said.
The March 23 Incapacitation Law amended Basic Law: The Government to clarify that a sitting prime minister could only be removed from office if they were physically or mentally unfit — and only if approved by 75% of government ministers or 75% of Knesset members.
The Attorney-General’s Office argued that Netanyahu and his supporters had promoted the bill so that he did not feel under threat of being deposed because of involvement in the judicial reform despite his corruption trial conflict of interest agreement. The same day after the bill passed, Netanyahu announced that he was involving himself in judicial reform.
Baharav-Miara had warned Netanyahu on February 1 that his still active conflict of interest agreement prevented him from involvement in the judicial reform, as part of the effort would see changes in the composition and rules of the Judicial Selection Committee.
LEFT: Prime Minister Benjamin Netanyahu RIGHT: Attorney General Gali Baharav-Miara (credit: Canva, ERIK MARMOR/FLASH90, YONATAN SINDEL/FLASH90)Netanyahu’s conflict of interest
The 2020 conflict of interest agreement organized by Baharav-Miara’s predecessor Avichai Mandelblit conditioned his formation of a government with restrictions on involvement in the selection of judges, law enforcement, and legal officials that could influence his three ongoing corruption trials. Baharav-Miara warned Netanyahu again after his March 23 speech that he was acting in violation of the agreement.
In the Tuesday opinion on the petition filed by MQG just after the incapacitation law passed, the Attorney-General explained that the law went against the fabric of constitutional norms.
The Knesset is supposed to develop and pass general constitutional laws that enumerate the powers, structure and rules as part of the ongoing constitutional process. These “rules of the game” are established in Israel’s quasi-constitutional Basic Laws. The Attorney-General argued that the Incapacitation Law was passed for personal benefit, not to establish fundamental constitutional doctrine.
Baharav-Miara said that the use of the Basic Laws for personal and political needs was part of a trend in the cheapening of the quasi-constitutional legislation, as the High Court itself had identified when it on January 18 declined to rule on the amendment to Basic Law: The Government, which allowed Shas Chairman Arye Deri to assume ministerial positions. It had not struck the Basic Law, instead ruling largely on a reasonableness standard.
The court had said in response to the so-called “Deri Law” that it could only strike down a Basic Law in the most extreme of situations. The Attorney-General said the abuse of constitutional authority in the passing of the incapacitation law was extreme enough to warrant striking the Basic Law amendment.
MQG head Dr. Eliad Shraga said that Baharav-Miara showed that “the rule of law also rules the government and that in a democratic country, there are checks and balances between the authorities and therefore the anti-democratic legislation will be rejected at the gates of the High Court.”
Other petitions have also been filed against Netanyahu’s alleged violation of his conflict of interest agreement. On July 13 the High Court agreed to hear one such petition calling for Netanyahu’s ousting, later setting a hearing date for September.
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