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AG asks Supreme Court to strike down Basic Law protecting prime minister

The law shields Benjamin Netanyahu from being ordered to take a leave of absence due to an alleged conflict of interest.

Attorney General Gali Baharav-Miara, Feb. 7, 2022. Source: Screenshot.
Attorney General Gali Baharav-Miara, Feb. 7, 2022. Source: Screenshot.

Israeli Attorney General Gali Baharav-Miara has asked the Supreme Court in Jerusalem to strike down a semi-constitutional law that bars judges from ordering a prime minister to recuse himself from office, once again putting her at odds with the government of Prime Minister Benjamin Netanyahu.

In a filing to the court, Baharav-Miara claimed that parliament misused its authority to improve Netanyahu‘s legal position while he is on trial for corruption, and conspired to “allow him to operate in defiance of the court’s decision.”

In March, the Knesset passed the so-called recusal law barring the Supreme Court from declaring a sitting premier unfit to serve and thus forcing him to take a leave of absence.

The amendment to Basic Law: The Government stipulates that only the Cabinet has the authority to declare a sitting prime minister unfit to serve, and then only in the case of physical or mental incapacity.

The amendment’s explanatory notes state that “declaring the Prime Minister’s incapacity when this determination is made against the PM’s will, while he is physically and mentally competent to perform his post, serves in practice as annulment of the election results and the democratic process.”

Among the law’s effects is protecting Netanyahu from being ordered to take a leave of absence due to an alleged conflict of interest; the prime minister is overseeing the coalition’s judicial reform push while on trial.

Siding with the Movement for Quality Government, which filed the initial petition, Baharav-Miara general dubbed the law a “fundamentally flawed constitutional amendment.”

“The attorney general reminded everyone that the rule of law applies to those who rule,” the Movement for Quality Government’s chairman Eliad Shraga said, adding that Baharav-Miara has essentially adopted the NGO’s legal claims.

The Israeli Supreme Court has never struck down a Basic Law, a move that would be akin to striking down an amendment to the United States Constitution.

Accordingly, Netanyahu’s lawyers argued that “the very act of engaging in a legal debate concerning whether a particular Basic Law is appropriate or inappropriate is a violation of the Knesset’s authority, the principle of the sovereignty of the people and the rule of law.”

In Israel, the attorney general is a professional appointee who serves a six-year term regardless of whether the government changes. As such, the attorney general is not necessarily politically aligned with the prime minister or the governing coalition.

If the attorney general disagrees with a law or policy, then he or she may issue an opposing legal opinion.

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