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Israeli Supreme Court to weigh in on Basic Law shielding PM from removal

Supreme Court President Esther Hayut will be joined by Justices Uzi Vogelman and Yitzhak Amit in a live-broadcast hearing.

Israeli Supreme Court president Esther Hayut and fellow justices arrive for a court hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister, at the Supreme Court in Jerusalem, Jan. 5, 2023. Photo: Yonatan Sindel/Flash90
Israeli Supreme Court president Esther Hayut and fellow justices arrive for a court hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister, at the Supreme Court in Jerusalem, Jan. 5, 2023. Photo: Yonatan Sindel/Flash90

A three-judge panel of Supreme Court justices will hear petitions on Thursday against an amendment to Israel’s Basic Law: The Government limiting the circumstances under which a sitting premier can be removed from office.

Supreme Court President Esther Hayut will be joined by Justices Uzi Vogelman and Yitzhak Amit to discuss the petitions against the amendment in a hearing that will be broadcast live.

The amendment, passed in March, stipulates that only the government, and not the court or the attorney general, has the authority to declare a sitting prime minister unfit to serve, and then only in cases of physical or mental incapacity.

The amendment’s explanatory notes state that declaring a prime minister unfit while he is physically and mentally able to fulfill his duties annuls the election results and the democratic process.

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

The judges will determine whether to grant the petitioners’ request to issue a temporary injunction against the amendment until a larger panel is convened to decide on the law’s “constitutionality,” Kan News reported.

Attorney General Gali Baharav Miara has sided with the petitioners and asked the court to invalidate the amendment, claiming it was passed for personal reasons; that is, to improve Prime Minister Benjamin Netanyahu’s legal situation. It’s the first time an Israeli attorney general has come out against a Basic Law.

The government argues that the petitions should be rejected on the grounds that the Supreme Court has no authority to intervene in Basic Laws, as the court’s power to strike down legislation derives from such laws, which have a quasi-constitutional force. Critics say it is equivalent to the U.S. Supreme Court declaring unconstitutional a constitutional amendment.

Meanwhile, the government is weighing whether to submit a request that Hayut be forced to recuse herself from sitting on a 15-judge panel scheduled to hear petitions on Sept. 12 to cancel the amendment passed on July 24 to Basic Law: The Judiciary, which bars the court from using the so-called reasonableness standard to reverse decisions made by the Cabinet, ministers and other elected officials.

The basis for such a government request is a public speech Hayut made against the law in January. Speaking against the coalition’s judicial reform effort as a whole, Hayut singled out the proposed amendment to remove the reasonableness standard, arguing that it would deny the court a tool to protect citizens’ rights.

Proponents of the amendment argue that the standard is legally vague and has been used by the court to encroach upon the government’s authority.

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