AG: Bill that would limit ability to remove a PM creates legal ‘black hole’

Attorney General Gali Baharav-Miara on Sunday came out against a bill that would sharply reduce the circumstances under which the recusal of a prime minister could be ordered, warning the proposal would create a legal “black hole.”

Despite the opposition by the Attorney General’s Office, the Ministerial Committee for Legislation voted to back the measure, setting it up for an expected preliminary reading in the Knesset on Wednesday.

The bill was put forward last week by a member of Prime Minister Benjamin Netanyahu’s Likud party as the High Court of Justice reviews a petition seeking to declare the premier unfit for office. It also follows media reports — since denied — that Baharav-Miara was considering forcing the premier to take a leave of absence.

In a legal opinion sent to the government, one of Baharav-Miara’s deputies said that while there are grounds to clearly delineate when a sitting prime minister can be recused, there are numerous issues with Likud MK Ofir Katz’s bill.

“There’s a difficulty in reducing the situations for recusal to only a lack of physical or mental fitness, while changing the existing law that recognizes other potential situations,” Deputy Attorney Gil Limon wrote.

Limon warned the proposal could create a scenario in which a prime minister is objectively unable to continue serving but remains in office due to “political constraints,” but there is no legal recourse. He also said it would create a legal “black hole” by making the matter of a premier’s recusal exempt from judicial review.

“We believe that the combination of the bill’s components together could lead to absurd situations, in which a prime minister continues to serve in the role despite lacking the ability to do so… without it being possible to bring about his removal, for political reasons, and without the court having the authority to grant appropriate relief,” he said.

Deputy Attorney General Gil Limon, August 2, 2021 (Courtesy Gideon Sharon)

Currently, Israeli law does not provide an explicit legal mechanism for the attorney general to recuse a prime minister. Article 16 of Basic Law: the Government discusses what happens should a prime minister be temporarily unable to perform their duties, stating that a deputy prime minister take their place during that time, but it has for the most part been seen as referring to health concerns, not a conflict of interest.

In 2008, however, the High Court of Justice did entertain the idea that Article 16 might relate to legal issues facing the prime minister, when a petition to the court asked it to order the attorney general at the time to recuse then-prime minister Ehud OImert due to the criminal investigations that were underway against him. The High Court stated it was willing to assume Article 16 was not limited to health matters, and that criminal investigations were a significant problem for the prime minister, but said that could only lead to recusal in rare and exceptional circumstances, and therefore rejected the petition.

Under Katz’s bill, which would amend the “Basic Law: The Government,” only the prime minister or the cabinet, with a 75 percent majority, could declare a prime minister unfit for office — and then only for reasons pertaining to their mental or physical health. Following a cabinet vote to remove the prime minister, the Knesset speaker would bring the matter before parliament, which can approve the recusal with a majority of 90 MKs.

Earlier this month, the Movement for Quality Government in Israel petitioned the court saying Netanyahu must be removed, citing his government’s efforts to radically transform the judiciary and arguing that Netanyahu is in violation of a conflict of interest arrangement that bars him from involvement in matters that could impact his ongoing trial on graft charges.

As a preliminary step, the court asked the government to provide a response to the allegations.

Under that 2020 agreement, Netanyahu cannot be involved in any matters that affect witnesses or other defendants in his ongoing graft trial, or in legislation that would impact the legal proceedings against him.

“It cannot be allowed in a democratic state for a legal opinion that has no basis in the law to lead to an effective coup,” Katz, who is coalition whip, said of a theoretical order demanding Netanyahu’s removal. “A dramatic move like forcibly removing a serving and functioning prime minister must be determined by the people’s representatives alone, without the involvement of an unelected body” such as the High Court.

Likud MK Ofir Katz leads a committee meeting at the Knesset on February 12, 2023. (Yonatan Sindel/Flash90)

Coalition leaders have twice voiced outrage and warnings that a potential coup was in the offing — first following the media reports on the attorney general ostensibly weighing such a declaration, and then again after the court asked the government to provide a response to the petition by the Movement for Quality Government.

Netanyahu is on trial in three corruption cases on charges of fraud and breach of trust, as well as bribery in one of them. He denies wrongdoing and claims without evidence that the charges were fabricated in an attempted political coup led by the police, the state prosecution, the media and left-wing rivals.

Netanyahu’s new government is in the midst of pushing contentious legislation that will seriously weaken the judiciary. The overhaul proposed by Justice Minister Yariv Levin would drastically limit the High Court of Justice’s power of judicial review of legislation; allow the Knesset to re-legislate laws if the court strikes them down; give the government control over judicial appointments; and turn ministry legal advisers into political appointees while making their counsel non-binding.