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High Court set to hold key hearing on prime minister recusal law

The High Court of Justice on Thursday will hear petitions demanding it annul a controversial piece of government legislation that blocks the court’s ability to order the prime minister to recuse himself from office.

The hearing marks the latest battle between Prime Minister Benjamin 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.

The recusal 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.

Petitioners argue that the law was designed, among other things, to shield Netanyahu from 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.

The petitioners have called on the court to strike down the law as an abuse of the Knesset’s power to legislate Basic Laws. They argue that the measure was tailored to prevent the court or the attorney general from ordering Netanyahu to recuse himself due to the conflict of interest agreement, and that this personal aspect of the law is illegitimate.

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The petitions 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.

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 again with different wording to get around the delay.

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

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 three quasi-constitutional Basic Laws, which makes striking it down or intervening at all more constitutionally problematic for the High Court.

During the Thursday hearing, the court is expected to consider delaying the law’s implementation until the next Knesset takes office, a step that was recommended by Baharav-Miara.

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.

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.

Attorney General Gali Baharav-Miara arrives to casts her ballot for the head of the Israeli Bar Association in Tel Aviv on June 20, 2023. (Tomer Neuberg/Flash90)

Netanyahu’s lawyer told the High Court last week that the law was aimed at defending the democratic principle that only the voters determine the identity of their leader.

Attorney Michael Rabello insisted in his response to petitions against the law that recusal ordered by the High Court of Justice or the attorney general would contravene the basic foundations of democracy, and that the legislation merely codified this principle.

Thursday’s hearing will be 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 will be 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.