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High Court may strike down Incapacitation Law; views law to benefit Netanyahu personally

The court is expected to convene a second hearing with an extended panel of judges

President of the Supreme Court Esther Hayut seen during a court hearing on petitions against a law to get around Prime Minister Netanyahu's incapacitation, at the Supreme Court in Jerusalem, August 3, 2023. (Photo: Yonatan Sindel/Flash90)

Israel's High Court stated last Thursday that it views the Incapacitation Law as designed to personally benefit Prime Minister Benjamin Netanyahu, implying that it is considering striking it down or delaying its implementation, Israel's Kan news reported.

Judges indicated they may convey a second hearing of the law, passed by the government in March, with an extended panel of judges and will announce a decision in the coming days.

Indications that the law was designed to prevent Netanyahu from being ordered to recuse himself were “very clear,” stated Supreme Court President Esther Hayut, while Justice Uzi Vogelman said, “The fact is the law is personal."

Striking the law would be an unprecedented move, as it is an amendment to the Basic Law. The government and the court have never struck down a Basic Law or its amendment in the Jewish state's history.

Vogelman however, was very clear in his view that the High Court has the right to exercise judicial review over Israel’s quasi-constitutional Basic Laws.

The five-hour hearing was presided over by the court's three most senior judges and dealt with two petitions against the law brought forward by NGOs and opposition politicians, along with the support of Attorney General Gali Baharav-Miara.

The petitioners argued that the law, which established higher requirements to declare a prime minister unfit for office, was designed specifically to benefit Netanyahu.

Because the prime minister has been the subject of three court cases since 2020, the former attorney general established a conflict of interest agreement to restrict some of Netanyah's powers in the realm of the judiciary, so as not to interfere with the trial.

After the announcement of the current government's judicial reform plans, Israeli media speculated the attorney general would use the Incapacitation clause to declare Netanyahu unfit to serve due to his conflict of interest, and NGOs unsuccessfully petitioned the High Court to the same effect in February.

The Knesset then amended the Incapacitation Law on March 23, shortly after which Netanyahu made a public speech announcing he would now become more involved in the judicial reform.

Before this speech, Netanyahu made few direct statements about the reform.

It is unclear how the government would react to the unprecedented move to strike down an amendment to a Basic Law.

When recently asked by NBC if he would abide by a High Court ruling to strike down another recent piece of legislation, Netanyahu refused to give a straight answer.

"I think we have to follow two rules. One is: Israeli governments abide by the decisions of the Supreme Court, and at the same time the Supreme Court respects the Basic Laws, which are the closest thing we have to a constitution, I think we should keep both principles," he said in response.

On Thursday, several coalition ministers slammed the court for holding the hearing at all, with Heritage Minister Amichai Eliyahu even calling the possibility of striking down the law as "obviously illegal."

The All Israel News Staff is a team of journalists in Israel.

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