Drama and speculation unfolded on Thursday at the High Court of Justice, as it became apparent that the justices unequivocally considered the Incapacitation Law to be a personal law.
But despite all the excitement, it remains highly unlikely that the court will take the historic step of striking down the amendment to a basic law.
Petitioners presented arguments to the court that the Incapacitation Law was passed to improve Prime Minister Benjamin Netanyahu’s legal situation for violations of his corruption trial and conflict-of-interest agreement. This was presented as an abuse of constitutional authority to pass a personal law.
Supreme Court President Esther Hayut and Vice President Uzi Vogelman seemed to have accepted the arguments that the Incapacitation Law, which changed the previous procedure for declaring a prime minister unfit for service to being only for health reasons, is a personal law.
Coalition members had explicitly said the law was intended to protect Netanyahu from being deposed through the incapacitation procedure, Hayut said. Netanyahu had expressed that he felt himself protected from this measure and violating his conflict-of-interest agreement in a speech on March 23, when he announced his involvement in the judicial reform, she said.
Yet for all of Netanyahu’s paranoia about the attorney-general declaring him unfit for service through the Incapacitation Law, the legal grounds for such a move were legally dubious.
Unlikely Netanyahu was at risk of being declared unfit for service
It’s highly unlikely he was ever in danger. No matter how personal the law might be, or how much Netanyahu feared it, the legal gravity of the situation is undercut by the lack of tacit damage and imparted benefit.
Knesset legal adviser Yitzhak Beret pointed out that there wasn’t any actual legal impact on the conflict-of-interest agreement, a point well received by Hayut.
Hayut and the other justices repeatedly asked for the attorney-general’s representative and the petitioners to create a connection between the personal incapacitation amendment and the prime minister’s conflict-of-interest agreement. They failed to make the legal connection, frustrating Hayut.
Without this connection, it might be a personal law, but one of no more importance than the so-called Deri Law. With the basic law amendment that allowed Shas chairman Arye Deri to assume a ministerial position despite his past convictions, the court had declined to strike down the law. It preferred to rule on another matter, reasonableness, to remove Deri from his position.
The current bench has seen several basic law petitions, and it has always preferred to find alternatives. Despite there being a debate on the matter, striking down basic laws is a power the court believes itself to have, as Vogelman reminded a Netanyahu lawyer on Thursday.
Arguments in favor of the court’s ability to strike down the law focused on how extreme a case it was, as emphasized by the attorney-general’s unprecedented sanctioning of judicial review of the quasi-constitutional legislation.
Yet the court has restricted the striking down of basic laws not only to extreme cases, but also in those in which other options have been exhausted.
As Beret argued, the Incapacitation Law has broad application, fixing a lacuna. What makes it personal is that it was passed for Netanyahu while he was in office, and it applied immediately. It would be easier, instead of striking it down, to interpret the law as applying next Knesset – thereby removing Netanyahu from the legal equation.
Another option aside from canceling legislation is always preferable to the court, but striking down a basic law also invites a constitutional crisis. Assembling three justices for such a move seems unlikely.
The attorney-general’s representative told the court he wasn’t expecting the surprise of judicial review, because he wasn’t facing a full bench of 15 justices as the reasonableness standard is set to be reviewed.
Yet Israel has seen many surprises lately. There is an excited uncertainty, which can be appreciated, but tempered with the awareness of a low likelihood the Incapacity Law would be incapacitated.