Delay of Incapacitation Law instead of cancellation, High Court indicates

Israel’s High Court of Justice on Thursday heard petitions against the Incapacitation Law, which was passed in March and is intended to establish higher requirements to declare a prime minister unfit for office.

According to the law, a prime minister's health condition constitutes grounds for the incapacitation procedure, which can only be carried out after a thorough approval process.

Thursday's session was the second hearing on this issue, after the court had issued a temporary injunction on the implementation of the law in August and convened a second hearing for Sept. 28 and to be presided over by 11 High Court justices.

As anti-judicial reform protesters rallied outside the Knesset, petitioners argued that the law was designed specifically to benefit Prime Minister Benjamin Netanyahu.

The justices indicated that they do not intend to annul the law but may instead continue delaying its implementation until after the next election to avoid it personally benefiting Netanyahu.

The Knesset attorney, Yitzhak Bart, admitted that preventing the removal of Netanyahu on the basis of a 'conflict of interest' was “one of the main motives” for the law but that its purpose transcended the lawmakers’ specific motives.

Netanyahu’s personal lawyer Michael Rabello said that delaying or cancelling the law would “leave open the option of a head-on collision between the branches of government, the option of the trampling of the Knesset.”

Such a case would be tantamount to “a cancellation of the election results,” Rabello added.

These sentiments were echoed by the statements of several government ministers on Thursday.

“The meaning of delaying the implementation of the incapacitation law is that an official, no matter how senior, can take for themselves the authority, which was never given to them, to debate the ridiculous possibility of declaring a prime minister incapacitated in complete opposition to the results of the elections,” Justice Minister Yariv Levin said.

Finance Minister Bezalel Smotrich concurred, saying, “The people had their say in the election, and officials cannot cancel the choice of the people.”

The coalition also argues that the court lacks the authority to cancel laws with the status of a “Basic Law.” 

Basic Laws have functioned as a quasi-constitution in Israel due to the lack of a written constitution.

When Netanyahu became subject to three criminal cases against him for bribery, fraud, and breach of trust, then-Attorney General Avichai Mandelblit in 2020 established a conflict of interest agreement to restrict the prime minister’s authority on legal and law-enforcement appointments and other judicial issues so as not to interfere with the trial.

Ever since the current government announced its plans to reform Israel's judicial system, there has been speculation in the media and by coalition members that current Attorney General Gali Baharav-Miara would use the Incapacitation clause to force Netanyahu out of office, an argument that was also used by several NGO’s in a High Court petition in February.