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Jerusalem CNN –
Israel’s Supreme Court has begun hearing petitions against a new law that makes it harder to declare a prime minister unfit for office.
Eleven of the Supreme Court’s 15 justices heard Thursday’s arguments. Within two months, the court would have heard arguments on three cases challenging laws passed by Benjamin Netanyahu’s government this year.
But Thursday’s petition concerns Netanyahu most personally.
The law states that only the prime minister himself or the cabinet with a two-thirds majority can declare the leader unfit, and only “on grounds of physical or mental disability.” The cabinet vote would then have to be confirmed by a two-thirds majority in parliament, the so-called Knesset. The amendment is a change to one of Israel’s basic laws, which is the closest thing to a constitution in the country.
The amendment was passed before legislation began on a judicial reform package pushed by Netanyahu’s right-wing government that has divided the country and led to months of protests from those who argue it is destroying Israel’s democracy and weakens its justice system.
Petitioners in Thursday’s hearing argue that the amendment was passed solely to benefit Netanyahu – he faces an ongoing corruption trial – making it an “abuse of voter power.” This is one of the bases on which the Supreme Court can theoretically reject changes to a basic law. However, the court has never repealed a Basic Law or an amendment to the Basic Law.
Yiktzhak Burt, a lawyer arguing on behalf of the Knesset, acknowledged in the Supreme Court on Thursday that the law in question benefited the prime minister personally, but insisted that lawmakers had the power to pass it because he was over has a democratic mandate and that the court should not strike it down. He acknowledged that although the law had flaws, they were not so severe that it would have to be repealed.
Supreme Court President Esther Hayut said on Thursday that the court was not discussing repealing the law but postponing its application.
Earlier this month, the Supreme Court heard arguments on another law passed in July that took away its ability to stop government actions that judges called “unreasonable.” It was also a change to a basic law. (The third petition is against Justice Minister Yariv Levin, who has refused to convene the committee to select judges because of disputes over its composition.)
Amir Fuchs, senior researcher at the Israel Democracy Institute’s Center for Democratic Values and Institutions, told CNN that there have never been “so many challenges” to changes to the basic laws before the Supreme Court.
“(We) have never had so many court hearings so close together. “This is a unique and unprecedented constitutional crisis,” Fuchs said.
Until that law was changed, there was no written law stipulating how a prime minister could be removed from office for “incapacity to serve,” although Fuchs said there was precedent in case law indicating the attorney general could make that decision .
“I really believe we had a flawed agreement beforehand. It was too vague. It demanded a change,” Fuchs said. “But it is quite clear that the motive for this law was entirely personal.”
Because there were petitions to declare Netanyahu unfit for service because of his ongoing corruption trial. He is the first serving Israeli prime minister to appear in court as a defendant on charges of fraud, breach of trust and bribery. He denies any wrongdoing.
As part of an agreement with the court to continue serving as prime minister despite his ongoing trial, Netanyahu agreed to a conflict of interest declaration in 2020.
The attorney general noted at the time that the declaration meant that Netanyahu would not be allowed to be involved in political decisions that affect the justice system – such as judicial reform. Certain aspects of the reform, Netanyahu’s opponents argued, could make it much easier for him to get out of the corruption trial.
When Justice Minister Levin announced the government’s plans for judicial reform earlier this year, Netanyahu said his hands were tied and he could not get involved because of the conflict of interest declaration.
But in March, just hours after passing the amendment making it harder to declare a prime minister unfit for office, Netanyahu announced he would get involved.
“To this day my hands are tied,” the Prime Minister said at the time. “We have reached an absurd situation in which I would have been declared unfit for service if I had intervened (in the judicial reform legislation) as my job required… Tonight I say to you: enough is enough. I will be involved.”
A preliminary hearing with three judges has already taken place in this case. The arguments were heard again on Thursday, this time before 11 of the Supreme Court’s 15 justices.
Normally the Attorney General would present the government’s case in a Supreme Court hearing, but AG Gali Bahrav-Miara would not. She agrees with the petitioners that the amendment should not stand, as she did at the “adequacy” bill hearing earlier this month.
The judges could reject the amendment and declare that Parliament had committed an “abuse of constitutional power,” Fuchs said. This is about passing laws that do not serve general but political purposes and benefit a specific person: Netanyahu.
Fuchs noted that the timing of the bill – it was introduced and passed within a few weeks – and comments made during the bill’s discussion in parliament made it clear that the purpose of the law was to protect Netanyahu.
The Supreme Court could also declare that the law is “not currently in force” and would only come into force when the next Parliament takes power. That could be a way out of a delicate constitutional situation.
“It eliminates most of the problem, because once you decide that it will only become active in the next Knesset, that means it will not solve any personal problem for Netanyahu and it gives the Knesset time to reconsider the agreement,” said Fox.
The court decision must be made no later than January 12, 2024 due to the retirement of the judges handling the case.
The court must also decide by then on the petition challenging the law, which nullified the court’s ability to declare government actions “inappropriate.” That’s considered a much bigger challenge, and for the first time, all 15 current Supreme Court justices have heard the case. The decision on this petition is expected to take longer than the one being heard on Thursday.
In addition, the Supreme Court is set to hear a challenge from the justice minister delaying the convening of the committee to select new Supreme Court justices. Netanyahu’s government wants to reform the selection of judges in Israel to give politicians more influence.
The committee was scheduled to meet last week, but Levin postponed the meeting.
“It’s very important, even if it is [an] “It is an administrative matter, not a petition against a constitutional law,” Fuchs said of the challenge, since Levin could be ordered to follow a court ruling on an essential element of judicial reform.
But the real crisis could come after the Supreme Court issues all three rulings, Fuchs said, if Netanyahu and his government decide to defy them. Despite repeated questions from CNN, among others, he has not yet committed to following them.
“It is in the hands of the government because they can accept the decision. Even if (Netanyahu) avoids the question of whether he will abide by the decision, that doesn’t mean he won’t,” Fuchs said.