September 28 Legislation - Incapacitation/Recusal
👉🏽 Can a basic law, or amendment to a basic law, be passed solely for a personal reason? That is the question the courts will decide when they rule on annulling the incapacitation/recusal bill, which was passed in March.
👉🏽 September 28, eleven justices on the court will hear petitions against recusal/incapacitation, an amendment to "Basic Law: The Government", which shields the prime minister from being removed or recused by the court or attorney general, and which was passed specifically to protect PM Netanyahu. In a preliminary hearing in early August, Justices Esther Hayut, Uzi Vogelman and Isaac Amit lambasted the law as being clearly personal. Currently, the legislation stipulates that the power to declare a prime minister incapacitated lies solely in the hands of the Knesset, and can be based on only medical grounds, and done only if approved by 75% of cabinet ministers, as well as 80 MKs of the 120 members of Knesset.
Basic law amendments that are personal or too narrowly focused (such as the 2020 amendment to "Basic Law: Knesset", that delayed the deadline for passing the budget to allow for the resolution of political conflicts, in that case between PM Netanyahu and Benny Gantz) are subject to being struck down. The recusal bill might be ruled too personal or too narrowly focused to be legally viable.
The question here is whether the Knesset can be said to have improperly utilized its power to create a personal ruling, risking it being invalidated by the court even though it is a Basic Law. (Delaying the implementation of such a law could also potentially resolve its personal nature, as was the case with the Tiberias Law, unanimously adjudicated in early August, which will only come into effect after October’s municipal elections. There is currently an injunction in place on the recusal law, suggesting its implementation might be similarly postponed.)
On September 18, Attorney-General Gali Baharav-Miara submitted her views, that the Incapacitation Law amendment 12 in “Basic Law: The Government” was solely to influence PM Netanyahu’s pending legal case and that personal reasons are insufficient for Basic Laws.
In 2020, PM Netanyahu signed a conflict of interest agreement which permitted him to serve as Prime Minister, despite his indictment for corruption. The agreement barred Netanyahu from being involved in appointment of judges, in particular judges on the Jerusalem District Court, where his trial is underway, and the Supreme Court, where any appeal would be entered, as a conflict of interest. In February, Attorney General Baharav-Miara told Netanyahu that her legal opinion is the agreement prevents him from being involved in the Coalition's judicial overhaul legislation, which includes reformulating the Judicial Selection Committee.
Baharav-Miara had earlier requested that the court invalidate the Basic Law. They rejected invalidation, but postponed the law’s enactment to the next Knesset.
Coalition members have said the court does not have the authority either to cancel Basic Laws or delay them. The Court has said that the doctrine of misuse of constituent power allows them to strike down Basic Laws or amendments thereof, if the Knesset passed narrow laws. Pundits think this is the issue most likely for the courts to take on, and the injunction that led to this hearing suggests the court's inclination to intervene.
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