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Sequel to constitutional showdown pits government against court on PM recusal law

With societal and political tensions in Israel more profoundly strained than ever, the High Court of Justice — the veritable epicenter of those tensions — is set to hear petitions on Thursday against government legislation that blocks the court from potentially ordering the prime minister to recuse himself from office.

The court has, meanwhile, stopped petitions that had been filed requesting the institution do so.

Passed in March, the law itself is fundamentally connected to the political tempest that has befallen the country ever since Prime Minister Benjamin Netanyahu was indicted in 2020 on corruption charges, and by extension, to the severe polarization that has arisen as a result.

Thursday’s hearing will be the second such 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.

Although the recusal law has less constitutional impact in terms of the balance of power between the judiciary and the executive, it is nevertheless a highly sensitive issue given the importance that Netanyahu ascribes to it. His political camp sees any effort to annul this law as a threat to his premiership and an attack on its stability.

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And the recusal law, like the reasonableness law, is an amendment to one of the Basic Laws (Basic Law: The Government, in this case) which comprise a makeshift Israeli constitution, and which makes striking down or altering such legislation highly controversial.

The recusal law, perhaps more correctly called the incapacitation law, changed an ambiguity in the Basic Law in which the court might theoretically have had the power to order a prime minister to recuse himself or herself from office under certain circumstances, potentially including a violation of a conflict of interest agreement such as Netanyahu has signed.

Chairman of the Knesset’s Special Committee on Amendments to Basic Law: The Government Likud MK Ofir Katz votes in a committee meeting to approve the bill for its final readings in the Knesset plenum, March 21, 2023. (Yonatan Sindel/Flash90)

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

The background to this amendment is a conflict of interest agreement signed by Netanyahu in 2020 under the auspices of the High Court that allowed him to serve as prime minister after the 2020 elections despite being under indictment for corruption.

That agreement prohibits Netanyahu from being involved in the appointment of judges and senior legal officials, in particular appointments to the Jerusalem District Court where his trial is being held, as well as to the Supreme Court where an appeal against any conviction would be held. The agreement also barred him from involvement in legislation that might affect the process or outcome of his trial.

In February, Attorney General Gali Baharav-Miara wrote to Netanyahu and told him explicitly that in her legal opinion, the agreement barred him from being involved in his government’s judicial overhaul legislation. The legislative package includes measures that would give the government greater control over the Judicial Selection Committee, which appoints new judges.

Petitions were subsequently filed to the High Court by two organizations, asking it to order Netanyahu to recuse himself due to what they argued was his violation of the conflict of interest agreement. The court agreed to hear those petitions.

Eight days later, and with Netanyahu increasingly worried that the court might remove him from office, several coalition MKs submitted draft bills to block the court from having the ability to order the prime minister to recuse himself. The final draft of the government-backed bill was approved on March 23.

Although the legal proceedings for the petitions requesting that the court order Netanyahu from office were already underway, the legislation stopped them in their tracks since the law was now completely unambiguous: only the government, Knesset, or prime minister himself could declare him incapacitated and unable to serve as premier.

The petitions against the law were swift in coming, filed by the Movement for Quality Government in Israel and the Yisrael Beytenu party.

Supreme Court President Esther Hayut (center) alongside Justices Uzi Vogelman (left) and Isaac Amit (right) during a hearing on petitions against the coalition’s recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

They argued that since the legislation was clearly designed to help Netanyahu evade the petitions that seek to have the court order him to recuse himself — as openly acknowledged by some coalition MKs — this personal aspect of the law made it unfit to be part of the constitutional order.

The High Court has developed a doctrine of “the misuse of constituent power” whereby it has said that in certain circumstances it could strike down a Basic Law, or an amendment to one, if the Knesset had abused its powers to pass these quasi-constitutional laws for narrow, short-term goals. Helping the prime minister avoid legal proceedings might well qualify.

The attorney general herself made this argument in her response to the petitions — in opposition to the government’s stance — writing that the legislation represented “a severe blow to the rule of law” that could “establish a pattern of misuse of the term ‘Basic Law’ in order to create a shelter for law-breaking, harm ethical conduct, and make pending legal proceedings irrelevant.”

Netanyahu and his legal team have countered these arguments in several legal dimensions.

In his response to the petitions, Netanyahu’s attorney argued that the court has no power of judicial review over Basic Laws since they define the legal space within which all Israeli governmental institutions, including the High Court, operate, and therefore are only subject to the Knesset in its capacity as constituent authority — that is, the institution tasked with formulating Israel’s constitution.

Netanyahu also argued that the previous version of the law never allowed for the High Court or attorney general to order a prime minister to recuse himself in the first place, and that the legislation merely clarifies this situation.

And finally, he argued that the law itself does not fall foul of the “misuse of constituent authority” doctrine since the law was formulated in a general and long-term manner and will apply to all prime ministers in the future, and therefore is broadly applicable.

“This is a constitutional amendment which is a general, inclusive, permanent and stable constitutional arrangement based on a public and political purpose,” Michael Rabello, Netanyahu’s attorney, contended.

Michael Rabello at a hearing of the High Court of Justice for petitions against the coalition’s prime minister recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

But despite the arguments of Netanyahu and his legal team, the High Court has already taken a dim view of the legislation.

During a preliminary hearing on the petitions in August in front of the three most senior justices on the court, those justices made it clear that they believed the law to have been very clearly tailored for Netanyahu personally.

“Does the personal nature of this law not rise to the level of misuse of constituent authority” by the Knesset, Supreme Court President Justice Esther Hayut asked pointedly. She also stated that the court had only recently deplored what it calls the abuse of Basic Laws for short-term political purposes, such as an amendment that staved off elections in 2020 by extending the deadline for the passage of the budget, or a law passed to allow Shas leader Aryeh Deri to return to ministerial office after the High Court barred him from holding cabinet positions.

“We have already expressed criticism, but it seems that it is falling on deaf ears,” Hayut lamented during the August hearing.

Following that hearing, the court issued an injunction ordering the government to explain before an expanded 11-justice panel why the implementation of the legislation should not postponed to a later date so as to eliminate its tailor-made aspect.

Such an injunction strongly indicates the court’s inclination to intervene since it provides a first insight into the justices’ direction of thought, and also switches the burden of convincing the court from the petitioners to the government.

A decision by the court to delay implementation would be a so-called “interpretative” decision, whereby the court tries to avoid taking the controversial step of striking down Knesset legislation by “interpreting” it in a manner that is in keeping with existing Israeli law.

Such a decision might be seen as the more moderate path since it avoids outright annulment, although Justice Minister Yariv Levin and coalition heads insisted that they would view such intervention as equally illegitimate, and have refused to commit to abiding by such a decision.

Supreme Court President Justice Esther Hayut during a court hearing on petitions against the coalition’s recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

Despite the indicators, there are still reasons to believe that the court will not necessarily intervene over the incapacitation law.

To start with, the High Court has never intervened over, much less annulled, a Basic Law, since it understands the enormous constitutional ramifications of doing so, not to mention the political and societal repercussions that would result.

Additionally, the comments of the three High Court justices in the August hearing and the subsequent injunction tell us only about the opinions of those three specific justices — Hayut, Uzi Vogelman, and Isaac Amit.

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.

Even if there might be a slim six-justice majority for intervention, Hayut may be reluctant to take the unprecedented step of striking down a Basic Law with such a divided court, which could be construed as undermining the legitimacy of such a ruling.

The incapacitation law is of critical importance to Netanyahu, since he views it as critical to ensuring that he maintains his premiership in the face of what he sees, or at least says, is a hostile legal elite out to topple him.

Should the High Court intervene, if only to delay implementation, there would surely be huge political repercussions that could further destabilize the country’s constitutional arrangements.

At the same time, the court is unlikely to take Netanyahu’s feelings and political concerns into account.

But it will be keenly aware of the substantive arguments made by Netanyahu’s legal team, the likely split on the court bench over the legislation, and the radical step any intervention over a Basic Law will represent.

The constitutional challenges posed by the coalition are rapidly coming to a head, with Thursday’s hearing the second of three crucial cases before the court, the first having been the reasonableness law hearing, and the third being an upcoming hearing in October over Justice Minister Yariv Levin’s refusal to convene the Judicial Selection Committee.

This government is sorely testing the forbearance of the court. Just how restrained it feels it can be in the face of the array of constitutionally dubious measures remains to be seen.