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At hearing, Knesset lawyer admits PM recusal law is personal, argues that’s irrelevant

The High Court of Justice on Thursday was hearing a challenge to a law that makes it harder to remove a sitting prime minister, which critics say is designed to protect Prime Minister Benjamin Netanyahu who has been working to reshape the justice system while he is on trial for alleged corruption.

Petitioners are asking the court to annul the controversial piece of legislation — an amendment to Basic Law: The Government — which blocks the court’s ability to order the prime minister to recuse himself from office.

Justices have indicated they are not planning to annul it, but could instruct the government to delay its implementation until after the next election in order to avoid it being used to personally benefit Prime Minister Benjamin Netanyahu.

The hearing, with an expanded panel of 11 justices, marks the latest battle between Netanyahu’s coalition and the judiciary, as Netanyahu fends off corruption charges and the government pushes an overhaul of the judicial system that has divided Israeli society.

Petitioners argue that the law was designed, among other things, to shield Netanyahu from consequences of possibly violating a conflict of interest agreement he signed in 2020 to allow him to serve as premier while on trial for corruption charges. Under that deal, Netanyahu committed not to involve himself in judicial matters that could affect his ongoing trial.

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The hearing was being live-streamed by the court on YouTube.

Yitzhak Bart, an attorney representing the Knesset, admitted at the hearing that “one of the main motives” for passing the legislation was to personally serve Netanyahu’s interests and shield him from removal based on the conflict of interest agreement. But he argued that what was more important and should form the basis of the discussion was the purpose of the law — distinct from the motives for passing it — which is more general and transcends the motives that led the lawmakers to pass it.

He said the “personal” nature of the law wasn’t necessarily meant to benefit Netanyahu as an individual, but rather as the head of the government the lawmakers took a part in forming.

Bart also said the purpose of the law wasn’t to allow prime ministers to act in a way that constitutes a conflict of interest, calling this a “harsh conclusion.” He argued the premier’s duty to refrain from conflicts of interest doesn’t stem from Basic Law: The Government.

Justice Yitzhak Amit responded: “When the law is colored from head to foot by a [specific] motive, the question is does this not influence the purpose of the law?”

Justice Ofer Grosskopf added: “The motives can affect the purpose. The purpose of the law was to revoke the possibility of ordering a prime minister to recuse himself due to violating a conflict of interest agreement, which is relevant to the current situation.”

Michael Rabello, a private lawyer representing Netanyahu, told the justices that voiding or delaying the implementation of the legislation would “leave open the option of a head-on collision between the branches of government, the option of the trampling of the Knesset” by ordering the premier to recuse himself.

He said such a scenario would be “a cancellation of the election results.”

Supreme Court Chief Justice Esther Hayut at a High Court of Justice hearing on petitions against the government’sprime minister recusal law, at the Supreme Court in Jerusalem, September 28, 2023. (Chaim Goldberg/Flash90)

Chief Justice Esther Hayut reacted: “How does delaying the implementation of the recusal law cancel the elections?”

Attorneys for the petitioners were set to make their cases to the panel later.

The law, passed in March, stipulates that the power to declare the prime minister incapacitated lies only with the government and the Knesset, on medical grounds alone, and requires the support of 75 percent of cabinet ministers and 80 lawmakers in the 120-member parliament.

Petitions against it were filed by the Movement for Quality Government in Israel and the Yisrael Beytenu party.

Thursday’s hearing is expected to last several hours, and afterward, judges will begin writing up a verdict, which will be published by mid-January.

Prime Minister Benjamin Netanyahu leads a government conference at the Prime Minister’s office in Jerusalem on September 27, 2023. (Chaim Goldberg/Flash90)

Ahead of the hearing, a senior coalition figure told the Kan public broadcaster that if the court overturns the law, the government will consider re-legislating the law with different wording.

The coalition is widely reported to have passed the law due to concerns that Attorney General Baharav-Miara or the High Court could order Netanyahu to recuse himself over his ostensible conflict of interest. Some coalition MKs have openly acknowledged that the legislation was passed in order to thwart such a scenario.

The law is an amendment to Basic Law: The Government, one of Israel’s quasi-constitutional Basic Laws, which makes striking it down or intervening at all more constitutionally problematic for the High Court.

Baharav-Miara has herself recommending that the law’s implementation be delayed until the next Knesset takes office.

Such a move by the court would allow it to avoid the highly contentious and unprecedented step of striking down an amendment to a Basic Law, while solving what petitioners and Baharav-Miara herself have pointed to as the problematic nature of the legislation, due to its ostensible goal of personally benefiting Netanyahu.

File: Attorney General Gali Baharav-Miara arrives to casts her ballot for the head of the Israel Bar Association at a voting station in Tel Aviv on June 20, 2023 (Miriam Alster/Flash90)

Following a preliminary hearing last month, the court issued an interim injunction against Netanyahu and the Knesset demanding they explain why implementation of the law should not be delayed to the next Knesset, to circumvent the personal aspect of the legislation — a strong hint that the court is considering such action.

Thursday’s hearing is presided over by 11 justices, five of whom can reliably be defined as conservative, and at least two of whom — David Mintz and Noam Sohlberg — have expressed grave doubts as to the court’s power of judicial review over Basic Laws.

The hearing is the second major courtroom drama this month, following an unprecedented 15-justice panel earlier in September that witnessed a head-on confrontation between the government and the judiciary over the government’s contentious “reasonableness” law limiting the courts’ power of judicial review over administrative government decisions.

A third crucial case will come before the court next month when it holds a hearing on Justice Minister Yariv Levin’s refusal to convene the Judicial Selection Committee.