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Israeli High Court holds hearing on ‘recusal law’

Appellants petitioned challenging the "constitutionality" of a Basic Law limiting the court's ability to remove a PM from office.

Eleven Israeli Supreme Court Justices deliberate on a petition related to Palestinian Arabs submitted by HaMoked, among other NGOs. Photo by Yossi Zamir/Flash 90.
Eleven Israeli Supreme Court Justices deliberate on a petition related to Palestinian Arabs submitted by HaMoked, among other NGOs. Photo by Yossi Zamir/Flash 90.

For the second time in just over two weeks, Israel’s High Court of Justice is hearing a petition calling for it to strike down an amendment to a Basic Law, this time one dealing with the court’s ability to declare a prime minister unfit for office.

An expanded panel of 11 judges is conducting the hearing, which began on Thursday morning.

The “recusal law,” an amendment to Israel’s Basic Law: The Government, limits the circumstances under which a sitting premier can be removed from his position.

Passed in March, the law 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 August 6, the Supreme Court, sitting as the High Court of Justice, 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 argue that the amendment is a “personal law” meant to protect 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.

Attorney General Gali Baharav-Miara has sided with the petitioners and asked the court to invalidate the amendment, marking the first time an Israeli attorney general has come out against a Basic Law.

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.

The government has held 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 American Supreme Court striking down an amendment to the United States Constitution.

Coalition members sharply criticized the court for holding the hearing. Justice Minister Yariv Levin said on Thursday, “The hearing that is being held today in the court is, in practice, a hearing on overturning the election results. No whitewashed name can hide this simple truth.

“The court again seeks to interfere, with a complete lack of authority, in a Basic Law. It once again puts itself above the government, above the Knesset, above the people and above the law. This is not democracy,” he added.

Constitution, Law and Justice Committee chairman Simcha Rothman, another key figure behind the government’s reform program, told Army Radio on Thursday, “Such a discussion in a democratic state is a very extreme act.

“What limits the government are the elections and the need to win the faith of the voters again and again,” Rothman said. “What is supposed to limit the court is the law. It doesn’t establish the laws itself. Once the court makes the laws, then it’s the legislature, it’s also the judge and it’s the executive.

“There’s no separation of branches. There’s no democracy. It’s a reality that doesn’t exist in any other country in the world. It’s an undemocratic reality. And whoever takes the court to such a place is taking Israel to a very, very dangerous place,” Rothman said.

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.”

Following its passing, NGOs immediately filed petitions asking the High Court to strike it down. Levin criticized that hearing too, arguing that the court has no legal grounds to consider the case.

“The court, whose justices elect themselves behind closed doors and without a protocol, is placing itself above the government, above the Knesset, above the people and above the law,” he said.

“Until today, despite highly problematic judicial activism, there was at least one agreed foundation—the court respected Basic Laws,” he continued. “This is the foundation that preserved democracy in Israel.”

Opposition leader Yair Lapid argued that the issue isn’t a constitutional one because the amendment in question “isn’t a Basic Law and doesn’t even resemble a Basic Law.

“This is an irresponsible document that someone wrote ‘Basic Law’ on, and they have since demanded it be treated as holy writ,” said Lapid.

The court has not yet issued a decision in the hearing on the “reasonableness law,” with one expected in the coming months.

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