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Knesset legal adviser moves to oppose AG on law shielding Netanyahu from recusal

Knesset legal adviser Sagit Afik asked the High Court of Justice Wednesday for permission to submit an additional response to petitions against a law that prevents the court from ordering a prime minister to recuse himself from office.

Afik’s move highlighted her split on the matter with Attorney General Gali Baharav Miara.

In an extraordinary filing last week, Baharav-Miara requested that the court strike down the law passed in March. If her stance is accepted, it would mark the first time the court strikes down one of Israel’s quasi-constitutional Basic Laws.

“One cannot overstate the precedent set by the position of the attorney general. The court has never nullified a Basic Law and the attorney general is seeking to do so for the first time,” Afik wrote in her request to the court, according to multiple media reports.

The High Court is due to hear petitions against the law on Thursday.

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Afik pointed out that Baharav-Miara’s position was submitted to the court after the Knesset legal adviser had offered her own preliminary position that the petitions should be rejected. Given the significance of what Baharav-Miara was now asking the court to do and that the Knesset’s first response could not address the attorney general’s later input, Afik pleaded to be granted the opportunity to file a further opinion, even after the court hears the petitions.

Although striking down the legislation would be a dramatic step, it would not mean that Prime Minister Benjamin Netanyahu would have to resign as prime minister, but would only keep the option on the table. The attorney general has been said to oppose such a drastic move.

Attorney General Gali Baharav-Miara in Tel Aviv on June 20, 2023. (Miriam Alster/Flash90)

In her filing to the High Court, Baharav-Miara argued that the Knesset misused its authority to pass the March law in order to improve the personal legal position of Netanyahu, who is on trial for graft.

The attorney general connected the legislation to petitions filed against Netanyahu requesting the High Court order him to recuse himself. Those petitions argued that he is in a severe conflict of interest in dealing with his government’s judicial overhaul efforts while on trial.

The bill, Baharav-Miara pointed out, was submitted to the Knesset just days after the petitions were filed against Netanyahu. She observed that just hours after the legislation was passed into law, the prime minister announced he was directly involving himself in the judicial overhaul agenda.

As such, she surmised it was designed specifically to allow Netanyahu to evade the conflict of interest agreement he’d signed in 2020, which was authorized by the High Court, in order to allow him to continue serving as prime minister while facing charges.

A Basic Law passed for the personal legal benefit of one individual “contains a serious constitutional flaw” and the court should invalidate it, wrote Baharav-Miara.

The attorney general argued that the bill should be struck down under the doctrine of “Abuse of Constituent Power,” which allows the court to exercise judicial review on quasi-constitutional Basic Laws if judges believe that the legislation’s purpose is to serve short-term political interests.

“The personal purpose” of the recusal law “led to the design of a governmental arrangement from a narrow and specific point of view in order to obtain a specific goal that has a short-term benefit for a current elected official,” without taking into account the future consequences of such an arrangement, wrote Baharav-Miara in explaining why the court should strike down the law.

Baharav’s filing was submitted a day after the Knesset passed another law that prevents the court from reviewing government decisions and appointments based on the doctrine of “reasonableness.” The court is also set to discuss petitions against that Basic Law in September, in another case with precedent-setting potential.

Striking down a Basic Law could create a severe constitutional crisis between the court and the Knesset.

Netanyahu responded to the attorney general’s filing last week by dismissing the court’s authority to strike down Basic Laws, sharpening battle lines in the growing fight over the judiciary. In recent interviews with US media on the government’s reasonableness law — an amendment to Basic Law: The Judiciary and the first law to be passed in the government’s judicial overhaul law — the prime minister has repeatedly refused to say whether he would adhere to a potential ruling in which the High Court of Justice strikes down a Basic Law, while warning it against doing so.

Critics of the government argue the hurried passage of changes to Basic Laws by the current government with a slim majority cannot serve as a shield from judicial review, noting that to do so would open the door to any legislation being designated as such to protect it from the court.