AG to court: Delay recusal law implementation so it doesn’t apply to Netanyahu

Baharav-Miara says Basic Laws ‘cannot be used as a private resource to remove personal problems from one’s path’

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Attorney General Gali Baharav-Miara attends a conference in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90/File)
Attorney General Gali Baharav-Miara attends a conference in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90/File)

Attorney General Gali Baharav-Miara on Monday called on the High Court of Justice to rule that a recently passed law barring the court or the attorney general from removing a prime minister from office would only come into effect after the next election.

Israel’s quasi-constitutional Basic Laws — of which the new legislation is a part — “cannot be used as a kind of private resource that removes personal problems in the realms of ethical conduct and criminal law from [one’s] path,” Baharav-Miara said. A ruling postponing implementation would solve such problems, she argued.

Such a move by the court would allow it to avoid the highly contentious and unprecedented step of striking down an amendment to a Basic Law, while solving what petitioners and Baharav-Miara herself have pointed to as the problematic nature of the legislation, due to its ostensible goal of personally benefiting Prime Minister Benjamin Netanyahu.

Petitioners argue that the law was designed, among other things, to release Netanyahu from a conflict of interest agreement he signed in 2020 to allow him to serve as premier while on trial for corruption charges. Under that deal, Netanyahu committed not to involve himself in judicial matters that could affect his ongoing trial.

They have called on the court to strike down the law as an abuse of the Knesset’s power to legislate Basic Laws. They argue that the measure was tailored to prevent the court or the attorney general from ordering Netanyahu to recuse himself due to conflict of interest, and that this personal aspect of the law is illegitimate.

Baharav-Miara issued her opinion in a written response to the court to the petitions.

The High Court held a preliminary hearing in August over the law, which stipulates that only the government and the Knesset can declare a prime minister incapacitated, and then only for health reasons.

During the hearing, the justices made it clear that they believed the law to be personally tailored for Netanyahu, and on several occasions asked whether this problem could be resolved by delaying implementation of the bill to the next Knesset, indicating that they are considering such a ruling.

Left: Attorney General Gali Baharav-Miara in Tel Aviv, June 20, 2023. (Tomer Neuberg/Flash90); Right: Prime Minister Benjamin Netanyahu in the West Bank settlement of Ma’ale Adumim, September 1, 2023. (Olivier Fitoussi/Pool)

The attorney general’s response is the latest in a series of occasions in which she has not only refused to represent the government’s position in court, but taken a directly opposing position.

The next recusal law hearing, scheduled for September 28, is one of three major cases before the court in which the government is facing legal challenges to key policy and legislation — the others being its law limiting court oversight of ministers’ decisions, and petitions against Justice Minister Levin for refusing to convene the Judicial Selection Committee.

In her submission on Monday, the attorney general supported the postponement option, writing that it was clear the law was passed with Netanyahu in mind from comments made by coalition MKs throughout the legislative process, as well as those of the prime minister immediately after it was passed into law.

Specifically, she argued that the law was designed to stop the High Court from hearing and ruling on petitions that had already been filed at the time, calling on the court to order Netanyahu to recuse himself for being in violation of the conflict of interest agreement.

The attorney general argued that this was an unfitting purpose for a Basic Law, as these are intended to define “central and important legal arrangements for the purpose of governmental continuity.” The legislation, she said, constituted “a severe blow to the rule of law” that could “establish a pattern of misuse of the term ‘Basic Law’ in order to create a shelter for law-breaking, harm ethical conduct, and make pending legal proceedings irrelevant.”

One of the two doctrines for potentially striking down Basic Laws which the High Court has developed in previous rulings is the “misuse of constituent power” doctrine, where a Basic Law is passed for narrow, short term or political purposes, which have no constitutional value.

Baharav-Miara said the new law had created “a personal arrangement for a regime, designed out of a narrow and specific perspective in the interest of achieving a specific result which would have an immediate and short-term benefit for the serving prime minister.”

President of the Supreme Court Esther Hayut (center), Supreme Court Justices Uzi Vogelman (left) and Isaac Amit (right) seen during a court hearing on petitions against the coalition’s recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

The Knesset had been “recruited” into action, she continued, to deal with Netanyahu’s personal legal problems and to bring to a halt the legal proceedings against the prime minister at the High Court.

“Therefore it is the attorney general’s position that it would be fitting for the implementation of Amendment 12 to Basic Law: The Government [the recusal law] to not be immediate, but to take effect from the next Knesset,” Baharav-Miara concluded.

This would give the Knesset the chance to amend the personal nature of the law and “shape the matter from a broad policy perspective, with a forward-looking view and behind a ‘veil of ignorance.’”

In March, the coalition passed the amendment to Basic Law: The Government, eliminating the possibility of the High Court ordering a prime minister to recuse himself. The law stipulates that this power will only lie with the government and the Knesset based on medical grounds, and requires the support of 75 percent of cabinet ministers and of 80 lawmakers in the 120-member parliament.

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