Will the A-G declare Netanyahu unfit to serve? Guess again - explainer

Reports on Friday said that the attorney-general is considering declaring Netanyahu unfit because of conflict of interest.

 Netanyahu enters the Knesset on December 29 for the presentation of his new government. (photo credit: MARC ISRAEL SELLEM)
Netanyahu enters the Knesset on December 29 for the presentation of his new government.
(photo credit: MARC ISRAEL SELLEM)

Dramatic reports broke Friday night that Attorney-General Gali Baharav-Miara was considering declaring Prime Minister Benjamin Netanyahu unfit to serve in office due to conflicts of interest stemming from his corruption trial in the proposed judicial reforms. But according to a legal expert, such an outcome is highly unlikely due to both legal and political limitations.

“The bottom line is that this is not going to happen,” Dr. Adam Shinar of Reichman University in Herzliya told The Jerusalem Post Sunday. “The idea that the attorney-general’s legal advice to the government would declare Netanyahu as unviable to fill the post is unprecedented.”

The case for Netanyahu taking a leave of absence due to being unfit for service is based on tenuous legal reasoning, he said, adding: “According to Basic Law: The Government, there is a clause that says ‘What happens when the prime minister is no longer available to fulfill his role [and] is unable to?’ And the thought behind this clause has nothing to do with conflict of interest or corruption or attorney-general or anything else. It has to do with the fact that the prime minister is simply not available to do his job.”

Shinar cited the example of former prime minister Ariel Sharon.

If the prime minister was in a coma and unable to fulfill the role for 100 straight days, then he would be considered unfit and need to be replaced, he said, adding that the idea behind the clause is that the prime minister is sick or missing.

 PRIME MINISTER Benjamin Netanyahu holds last Sunday’s cabinet meeting at the Prime Minister’s Office in Jerusalem, as Justice Minister Yariv Levin looks on.  (credit: YONATAN SINDEL/FLASH90) PRIME MINISTER Benjamin Netanyahu holds last Sunday’s cabinet meeting at the Prime Minister’s Office in Jerusalem, as Justice Minister Yariv Levin looks on. (credit: YONATAN SINDEL/FLASH90)

“The idea that you can use this clause in this particular case – that because of the conflict of interest and because we suspect that even though he’s not supposed to, he is involved in the legal reforms – and to use that in order to declare him unavailable, it basically means to depose him,” he said. “You’re basically saying he cannot be prime minister. That is quite a leap from the original understanding of this clause.”

Shinar said it would need to be proved that Netanyahu was pushing for the legal reforms. The prime minister has largely been quiet about the reforms, and they are under the purview of Justice Minister Yariv Levin and Knesset Constitution, Law and Justice Committee chairman Simcha Rothman, he said.

“There's just never been a case in Israel society where the legal advisor of the government has declared the prime minister unfit.”

Dr. Adam Shinar

Even if all these requirements were met, the societal and political will does not exist for such an unprecedented move, Shinar said.

“There’s just never been a case in Israel society where the legal advice is that the government has declared the prime minister unable to serve,” he said.

What was the conflict of interest agreement?

On Thursday, Baharav-Miara said the conflict-of-interest agreement made by her predecessor, Avichai Mandelblit, was still in effect. The agreement conditioned Netanyahu’s forming of the government in 2020 and was upheld in 2021 by the High Court.

Netanyahu is undergoing trials in several corruption cases. According to the agreement, he is unable to use his prime-ministerial powers to appoint law-enforcement authorities and intentionally impact the witnesses in his cases.

According to Israeli media reports, a 2021 ruling on the conflict of interest might allow the attorney-general to declare Netanyahu unfit to serve, and the Attorney-General’s Office was examining the ruling and considering doing so.

“I don’t know who published this, and what the motivation behind this was and what they wanted to achieve out of this,” Shinar said. “Maybe they wanted to deflect attention from what was going on to something that is not going to happen, which is going to put the spotlight on the attorney-general [and] on the legal advice to the government instead of what’s going on.”