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Top court holds key hearing on law shielding Netanyahu from removal from office

The High Court of Justice was on Thursday morning holding a pivotal hearing on petitions against a law passed earlier this year that prevents the court from ordering the removal of a sitting prime minister, in what could herald a new phase in the hard-right government’s showdown against what it claims is an overpowered justice system.

In March, the coalition passed an amendment to the quasi-constitutional Basic Law: The Government, eliminating the High Court’s theoretical option — never before used — of ordering a prime minister to step down. The law stipulated that this power will only lie with the government and the Knesset based on medical grounds, and requires the support of 75 percent of cabinet ministers and of 80 lawmakers in the 120-member parliament.

The law was passed as Israeli society was undergoing a schism over the government’s judicial overhaul plan and amid speculation that the court or Attorney General Gali Baharav-Miara could order Prime Minister Benjamin Netanyahu’s recusal if he overtly involved himself in the issue, as this would violate a conflict of interest agreement he had signed due to his ongoing criminal trial.

The conflict of interest deal barred Netanyahu from involving himself in making changes to the justice system, due to concerns such legislation could benefit him down the road in his legal troubles.

Indeed, hours after the law was passed, Netanyahu held a prime-time press conference announcing that he would from then on publicly involve himself in the overhaul push. This received immediate pushback from the attorney general, who warned him doing so would be illegal due to the agreement he had signed.

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The petitions under debate Thursday — filed by the Movement for Quality Government and by opposition MK Oded Forer of the Yisrael Beytenu party — claim that the law was passed to personally benefit Netanyahu and serve a short-term interest of his, which they argue constitutes an abuse of the Knesset’s power to makes amendments to Basic Laws.

Supreme Court Justice Uzi Vogelman at the Supreme Court in Jerusalem, before the start of a hearing against the Child Adoption Law, on August 2, 2023 (Yonatan Sindel/Flash90)

Thursday’s live-streamed hearing, which began at 10 a.m., was being overseen by Supreme Court Chief Justice Esther Hayut, her deputy Uzi Vogelman and Justice Isaac Amit. The hearing was the first on the law but not necessarily the last, and the panel of judges discussing the matter could later be expanded.

Voiding the law would mark the first time the High Court has struck down an amendment to a Basic Law. In recent interviews with US media on separate legislation — a highly controversial amendment to Basic Law: The Judiciary that limited High Court oversight of the government — 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, though he did warn the court against doing so. Other members of his Likud party have said such a ruling would be respected, but would nevertheless cause a crisis in the country.

However, several far-right ministers indicated Thursday that they won’t respect a ruling striking down the law. Heritage Minister Amichai Eliyahu told Galey Israel Radio: “We don’t need to respect the High Court decision just like it doesn’t respect the Knesset’s decision.” He said that even discussing the petitions was illegitimate, calling a potential voiding of the law “obviously illegal.”

Settlements Minister Orit Strock told the Ynet news site that if the law is struck down, “the meaning is that the High Court is madly pushing itself toward the abyss, because it is essentially saying: ‘Folks, let’s give up on democracy.'”

Although striking down the legislation would be a dramatic step, it would not mean that Netanyahu would have to resign as prime minister — it would simply mean the option is on the table.

In an extraordinary filing last week, Baharav-Miara requested that the court strike down the law, arguing that the Knesset misused its authority to pass it in order to improve the personal legal position of Netanyahu, who is on trial for graft.

Attorney General Gali Baharav-Miara arrives for the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem, Sunday, July 9, 2023. (Gil Cohen-Magen/Pool Photo via AP)

The attorney general drew a direct connection between the legislation and previously filed petitions requesting the High Court order Netanyahu to recuse himself. 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.

That being the case, she surmised that the law 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.

However, she has made clear that her stance against the law doesn’t mean she intends to order the premier to step down over the conflict of interest. Leaks published this week said she’s never discussed this option and it “isn’t on the table.”

Meanwhile, Knesset legal adviser Sagit Afik asked the court on Wednesday for permission to submit an additional response to the petitions, highlighting her split on the matter with the attorney general.

Knesset Legal Adviser Sagit Afik attends a meeting of the Constitution Committee at the Knesset in Jerusalem, on February 5, 2023. (Yonatan Sindel/Flash90)

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 requesting the High Court order Netanyahu to recuse himself 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.

Netanyahu responded to the attorney general’s filing last week by saying the court has no authority to strike down Basic Laws, sharpening battle lines in the growing fight over the judiciary.

Critics of the government argue the hurried passage of changes to Basic Laws by the current government with a slim majority, such as the “reasonableness” law passed last week, cannot serve as a shield from judicial review, noting that to do so would open the door to any legislation being designated as a Basic Law or an amendment to a Basic Law to protect it from court oversight.