The High Court of Justice will hear arguments on Thursday on whether the incapacitation law’s application should be delayed until the next Knesset.
Eleven justices will preside over the case. The bench was expanded from three judges following the first hearing on the amendment to Basic Law: The Government on August 3.
Petitions had called for the striking of the law, which modified the conditions for the procedure to declare a prime minister unfit for service. With the passing of the amendment on March 23, a prime minister could only be removed from office through the incapacitation procedure for medical reasons.
The law was an abuse of the Knesset’s constituent authority, the petitioners argued, because the legislation was passed with the intent of improving Prime Minister Benjamin Netanyahu’s legal position regarding the violation of his corruption trial’s conflict-of-interest agreement.
Netanyahu is on trial for three charges of corruption, and his formation of a government in 2022 was conditioned by a conflict-of-interest deal that would prevent possible influence over the trial. One of the powers that was restricted was the ability to appoint or remove law-enforcement officials, judges, or prosecutors who could impact his trial.The Attorney-General’s Office had warned Netanyahu earlier in the year that his involvement in the judicial reform violated the conflict-of-interest agreement. The judicial reform’s changes to the Judicial Selection Committee could alter who is on the Supreme Court in any potential appeals for his corruption trial ruling.
Critics also say the July 24 reasonableness standard law would remove the requirement for officials to explain why their policies are reasonable and allow for the political replacement of civil servants, such as the attorney-general.Netanyahu and the coalition believed reports that the attorney-general was considering his ousting through the incapacitation procedure, the petitioners argued, which led to the passage of the amendment. The day that the law passed, Netanyahu gave a speech announcing his involvement in the judicial reform.
In the August 3 hearing, Supreme Court President Esther Hayut and other justices indicated that they accepted that the law was personal and that the coalition believed the law had solved a political and legal challenge. Nevertheless, they seemed unconvinced about the actual impact of the law on the legal restrictions and the conflict-of-interest agreement.
The Attorney-General’s Office had sanctioned the striking of the legislation, although the High Court has never before canceled one of the quasi-constitutional basic laws. With both the August hearing and Thursday’s hearing, the respondents have challenged the authority of the court to review basic laws. The judiciary was overstepping its bounds and trampling on the will of the electorate, they said.
Suspicions and conspiracies
The court issued an injunction on August 6, indicating that it was moving away from striking the law and was instead leaning toward an interpretation to neutralize the personal nature of the law.
The petitioner, the Movement for Quality Government in Israel, said it supported the delay of the law.“Anyone with eyes in his head sees the many problems with the incapacitation law,” Movement for Quality Government in Israel chairman Eliad Shraga said, adding that it is “unconstitutional and personal.”
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