Prime Minister Benjamin Netanyahu's speech on Thursday night not only announced his direct involvement in the judicial reform but also signaled that he felt protected by the incapacitation law against his conflict of interest agreement.
Netanyahu was made subject to a 2020 conflict of interest agreement that conditioned his forming of a government with restrictions on powers and actions that could impact his ongoing corruption trials. The agreement, organized by former attorney-general Avichai Mandelblit, was affirmed in effect by a 2021 High Court of Justice ruling.
The conflict of interest agreement held that Netanyahu couldn't involve himself in legal and law-enforcement authority appointments. The concern was that the prime minister could impact his corruption trials to his benefit through those that he had helped into positions of power.
Attorney-General Gali Baharav-Miara announced in late January that the agreement organized by her predecessor was still in effect. Days later, Baharav-Miara sent a letter to Netanyahu informing him that he could not involve himself in the legislation and process of the judicial reforms. Netanyahu reportedly requested to be involved in negotiations, but the attorney-general denied him.
Function and composition of Israel's Judicial Selection Committee
A key part of the judicial reform would change the composition and function of the Judicial Selection Committee. Critics argue that a bill on the panel would create an automatic coalition majority that would be able to appoint justices and judges politically aligned with the coalition.
While Netanyahu has challenged and railed against Baharav-Miara's decision, for the last three months, he has largely complied. Netanyahu has not served as the public face of the reform, despite it being the most consequential and controversial policy of his government. Netanyahu has never been camera-shy. His statements have addressed situations around the reform – the protests, the rhetoric, the impact on economy and military – but it has been Justice Minister Yariv Levin and more so Constitution, Law, and Justice Committee chairman Simcha Rothman that has to lead the coalition's negotiation efforts and argued the substance and content of the induvial bills and provisions.
Netanyahu's judicial reform speech is in direct contradiction with Baharav-Miara's opinion that he should not involve himself in the reform. He explicitly stated on Thursday night that he would be taking over the negotiations, and would be involved in the reform. He went through the details of the judge selection bill and other provisions, overtly advocating for the law, and pushed for its continuation in the legislative process.
After three months of lurking in the shadow of the reform, it would be a great coincidence that Netanyahu's grand involvement announcement would come the day after the passing of the incapacitation law with no connection.
Israeli media reported in late January that the Attorney-General's Office was considering declaring the prime minister unfit for service over his conflict of interest. The A-G denied these reports, which contended that a Basic Law: The Government provision on declaring the prime minister unfit would be used as a basis for the decision. Some legal experts have contended that the legal grounding for this move is weak, as the provision is largely used for medical situations, though not exhaustively detailed in the law.
The coalition seemed to believe that there was a likelihood of the law being utilized in this manner. The High Court was petitioned to prevent the attorney-general from declaring Netanyahu unfit to serve in this manner. The petition wasn't outright rejected. Consequently, the coalition submitted the incapacitation law, which passed on Wednesday night.
The incapacitation law amends Basic Law: Government to specify that a prime minister can only be removed if they were physically or mentally unable to serve in the post. The decision is also placed in the hands of the ministers and Knesset, as opposed to the attorney-general.
Netanyahu: Incapacitation threat was holding me back
Netanyahu noted the matter of incapacitation in his speech, indicating the belief that it was the issue holding him back.
"Until today, my hands were tied," said Netanyahu. "We had reached the absurd situation that if I had entered the event, as my position requires, they threatened to remove me for incapacitation."
"We had reached the absurd situation that if I had entered the event, as my position requires, they threatened to remove me for incapacitation."
Benjamin Netanyahu
The Likud also seemed to believe that Netanyahu was protected by the incapacitation law. In response to the attorney-general's Friday warning that he was in violation of his conflict of interest agreement due to his Thursday speech, the party indicated that it appeared that Baharav-Miara was seeking to remove Netanyahu from power, but couldn't because the Basic Law had been amended.
Baharav-Miara herself addressed this belief in her Friday letter, stating that the incapacitation law doesn't cancel Netanyahu's obligations to the conflict of interest agreement.
It's not immediately clear if the conflict of interest cannot truly be enforced or its violation brought to High Court, but the timing of the law's passing and Netanyahu's statements makes it clear that the prime minister and his coalition believe themselves protected against the conflict of interest agreement by the incapacitation law.