Netanyahu: Justices lack authority to overrule Basic Law

Attorney general asks High Court to strike down law shielding Netanyahu from recusal

Baharav-Miara backs petition by Movement for Quality Government seeking unprecedented judicial action against Basic Law passed in March keeping court from ordering PM’s suspension

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

Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)
Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)

In an extraordinary filing on Tuesday, Attorney General Gali Baharav-Miara requested that the High Court of Justice strike down a law passed in March that prevents the court from ordering a prime minister to recuse himself from office, a stance – if accepted – that would mark the first time the court strikes down one of Israel’s quasi-constitutional Basic Laws.

The dramatic filing by the government’s chief lawyer arguing for the invalidation of a law passed at the behest of that same government, came a day after the Knesset passed the first part of its program to severely restrict the court’s ability to exercise judicial review over government decisions and legislation.

Prime Minister Benjamin Netanyahu responded by dismissing the court’s authority to strike down Basic Laws, sharpening battle lines in the growing fight over the judiciary.

Although striking down the legislation would be a dramatic step, it would not automatically mean that Netanyahu would have to resign as prime minister, since petitions demanding his recusal have yet to be accepted by the High Court.

In her filing to the High Court, Baharav-Miara argued that the Knesset misused its authority to pass the March law in order to improve the personal legal position of Netanyahu, on trial for graft.

The attorney general drew a straight line connecting the legislation and the petitions filed against Netanyahu, requesting the High Court order him to recuse himself due to what they argue is his conflict of interests in dealing with his government’s judicial reforms while on trial.

Attorney General Gali Baharav-Miara arrives for the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem, Sunday, July 9, 2023. (Gil Cohen-Magen/Pool Photo via AP)

The bill, she pointed out, was submitted to the Knesset just days after the petitions were filed against Netanyahu, and observed that just hours after the legislation was passed into law the prime minister announced he was directly involving himself in the judicial overhaul agenda.

As such, it was designed specifically to allow Netanyahu to evade the conflict of interests agreement he signed back in 2020 which was authorized by the High Court, in order to allow him to continue serving as prime minister.

A Basic Law passed for the personal legal benefit of one individual “contains a serious constitutional flaw,” which the court should invalidate, wrote Baharav-Miara

The attorney general argued that the bill should be struck down under the doctrine of “Abuse of Constituent Power,” which allows the court to exercise judicial review on quasi-constitutional Basic Laws if judges believe that the legislation’s purpose is to serve short-term political interests.

“The personal purpose” of the recusal law “led to the design of a governmental arrangement from a narrow and specific point of view in order to obtain a specific goal that has short-term benefit for a current elected official,” without taking into account the future consequences of such an arrangement, wrote Baharav-Miara in explaining why the court should strike down the law.

The High Court has never struck down a Basic Law and doing so would likely create a severe constitutional crisis between the court and the Knesset.

Netanyahu argued in response to Baharav-Miara’s brief that the court was unauthorized to exercise judicial review on Basic Laws.

The High Court “must not interfere with the legislation of Basic Laws by the Knesset in a manner which would constitute unprecedented and extraordinary intervention by the court in the constitutional role of the Knesset as the constituent authority,” Netanyahu’s attorneys argued.

Supreme Court President Esther Hayut (center), Justice Uzi Vogelman (left) and Justice Isaac Amit (right) at a hearing of the High Court of Justice on petitions against the appointment of Shas party leader Aryeh Deri as a minister due to his recent conviction for tax offenses, January 5, 2023. (Yonatan Sindel/Flash90)

“The honorable court has no authority to annul an aspect of a Basic Law, and the prime minister believes this is an issue which is not justiciable,” the attorney added.

In a joint statement following Baharav-Miara’s submission, the coalition party heads described her filing as “another attempt to annul the democratic choice of millions of citizens and give over the authority to remove an Israeli prime minister from office to unelected clerks.”

Said the party heads, “Prime Minister Netanyahu was elected by more than 2.5 million citizens and in a democracy it is the citizens alone who decide who the prime minister will be.”

The Movement for Quality Government, which filed the petition against the law, said the attorney general’s position essentially adopts its claims and that her submission “reminds the government that the rule of law applies to those who rule.”

The law, an amendment to Basic Law: The Government, was passed due to a concern by Netanyahu and the coalition that the High Court or Attorney General would order him to recuse himself due to conflicts of interest relating to his ongoing trial and the judicial overhaul legislation he and his government are advancing.

According to the recusal law, only a three-quarters majority vote of government ministers or MKs can compel a premier to take a temporary leave, and then, only for mental or physical health reasons.

Benjamin Netanyahu arrives for a court hearing in his trial at the Jerusalem District Court on May 31, 2022. (Yonatan Sindel/Flash90)

When the bill was introduced in February, Baharav-Miara’s office said it opposed the legislation since it would sharply reduce the circumstances under which the suspension of a prime minister could be ordered, and warned that the proposal would create a legal “black hole.”

Baharav-Miara’s filing once again put her at odds with the government and Netanyahu, with whom she has clashed on numerous occasions over government legislation and decisions.

Netanyahu is on trial in three separate cases and facing charges of bribery, fraud and breach of trust for allegedly taking expensive gifts from benefactors and attempting to arrange secret deals with media companies for more positive coverage. He denies wrongdoing.

Iddo Schejter contributed reporting.

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