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High Court to continue hearing petitions against recusal law

The "recusal law" strictly limits the reasons a prime minister can be ousted as unfit for office. Petitioners against the law say it is a "personal law" meant to protect Benjamin Netanyahu.

The Israeli Supreme Court at a hearing on petitions against the "recusal law," Sept. 28, 2023. Photo by Chaim Goldberg/Flash90.
The Israeli Supreme Court at a hearing on petitions against the "recusal law," Sept. 28, 2023. Photo by Chaim Goldberg/Flash90.

Israel’s Supreme Court, sitting as the High Court of Justice, will hold its second hearing on petitions calling for it to strike down the “recusal law,” which limits the court’s ability to declare a prime minister unfit for office.

An expanded panel of 11 judges conducted the first hearing, which lasted eight hours, on Sept. 28.

Israeli Supreme Court president Esther Hayut and Justice Anat Baron retire this month. As judges are allowed to give a verdict up to three months from the date of their retirement, a decision is expected no later than Jan. 12.

The “recusal law,” an amendment to Israel’s Basic Law: The Government, passed in March. It says a prime minister can only be removed if he announces he is physically or mentally incapable of fulfilling his duties, or if 75% of Cabinet ministers and 80 Knesset members request that he be removed.

The law’s explanatory notes state that to remove a sitting prime minister under any other conditions would annul the election results and the democratic process.

On Aug. 6, the High Court issued a temporary injunction against the law, ordering the government to explain why it should take effect immediately and not after the next Knesset is sworn in.

The Movement for Quality Government in Israel, an NGO involved in the anti-judicial reform movement, and opposition party Yisrael Beiteinu filed petitions against the law.

They argued that the amendment is a “personal law” meant to protect Israeli Prime Minister Benjamin Netanyahu from the consequences of violating a 2020 conflict of interest agreement, and is therefore an abuse of the Knesset’s power to pass Basic Laws and illegitimate.

According to the conflict of interest agreement, Netanyahu agreed not to involve himself in issues that could affect his ongoing criminal trials. The prime minister faces charges of bribery, fraud and breach of trust in three separate cases.

Attorney General Gali Baharav-Miara said in March that Netanyahu’s efforts to wade into judicial reform efforts violated the agreement.

In a letter to Netanyahu, she said that by weighing in on judicial reform proposals, “[you] violated the ruling of the Supreme Court that a prime minister accused of crimes must refrain from actions giving rise to reasonable fear of a conflict of interest between your personal interests relating to the proceedings and your role as premier.”

Baharav-Miara then sided with the petitioners, marking the first time an Israeli attorney general came out against a Basic Law. She asked the court to delay the law’s implementation until the next Knesset, a way for the court to sidestep the unprecedented decision of striking down a Basic law.

 ‘Clarify what was manifest all the time’

The government holds the position that the court has no authority to weigh in on Basic Laws, given their quasi-constitutional status—a position the court itself held only a short time ago but one that appears to have changed based on recent statements by justices.

The Israeli Supreme Court has never struck down a Basic Law, a move critics say would be akin to the U.S. Supreme Court striking down an amendment to its Constitution.

As Baharav-Miara has refused to represent the government in the case, it has hired attorney Michael Rabello.

In a statement defending the law, Rabello argued that political leaders should only be replaced by the people and not by unelected judges.

Rabello said that those sections of Basic Law: The Government dealing with the recusal of a prime minister refer only to physical and mental incapacity, and that there is no legal foundation for the High Court or the attorney general to remove a prime minister from office.

“The purpose of the amendment was to clarify what was manifest all the time: Recusal is a matter of physical or mental incapacitation alone, which if it occurs can only be determined by the prime minister or elected officials,” Rabello said in a statement.

Thursday’s hearing follows another on Sept. 12 when the High Court considered petitions against the “reasonableness law,” an amendment to Basic Law: The Judiciary that the Knesset passed in July.

The amendment—passed on July 24 by all 64 lawmakers in the governing coalition—bars justices from using “reasonableness” as a justification for reversing decisions made by the Cabinet, ministers and “other elected officials as set by law.”

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