Coalition heads: Court does not have authority to intervene

High Court issues injunction, seeks answers from the state on PM recusal law

Justices ask why legislation shielding PM from recusal shouldn’t take effect at a later date, making it less tailored to Netanyahu; expanded panel of 11 judges will hear petitions

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

Supreme Court President Justice Esther Hayut during a court hearing on petitions against the coalition's recusal law, August 3, 2023. (Yonatan Sindel/Flash90)
Supreme Court President Justice Esther Hayut during a court hearing on petitions against the coalition's recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice issued an interim injunction on Sunday relating to the recusal law passed by the coalition, and expanded the panel hearing petitions against the legislation to 11 justices, indicating that it is formally considering intervention against the law.

The court’s injunction instructs the prime minister, the Knesset, and the attorney general to explain why the court should not rule that the recusal law will only take effect at a later date. The law, an amendment to Basic Law: The Government, eliminates the ability of the court or the attorney general to order a prime minister to recuse themselves from office.

The injunction indicated that the court is considering an “interpretative” solution to the controversial legislation — which was seemingly largely tailored for Prime Minister Benjamin Netanyahu and his legal entanglements — where, instead of the court taking the drastic and unprecedented step of striking the law down entirely, the law would come into effect at a later date to remedy the problematic way it was advanced.

Coalition party heads denounced the High Court’s decision, claiming that it has no authority to either strike down a Basic Law or to change the date of its implementation, saying that such a decision would ruin the relationship between Israel’s branches of government.

The recusal law was passed by the coalition in March, apparently to ensure that Netanyahu, who is on trial on multiple counts of alleged corruption, will not be ordered to recuse himself due to any alleged violation of a conflict of interest agreement he signed in 2020. The prime minister had become increasingly concerned that Attorney General Gali Baharav-Miara would order him to recuse himself, after she stated he would be in violation of his conflict of interest agreement if he involved himself in his government’s judicial overhaul. Baharav-Miara has asked the court to strike down the recusal law, but has reportedly made clear that she is not considering ordering the prime minister’s recusal.

The conflict of interest agreement prohibits Netanyahu from making judicial appointments, and arguably, any broader changes to the judiciary, such as those his government has been advancing.

During the course of a High Court hearing on Thursday on petitions against the legislation, the three presiding judges, including Supreme Court President Justice Esther Hayut, made clear they believed the law to have been tailored personally for Netanyahu, and therefore flawed, and asked attorneys representing the Knesset and the attorney general if delaying implementation would resolve this problem.

(L) Gali Baharav-Miara on February 8, 2022. (Yonatan Sindel/Flash90) and (R) Benjamin Netanyahu, November 2, 2022. (Olivier Fitoussi/Flash90)

Hayut quoted Likud MKs who had stated explicitly that the law had been advanced for Netanyahu’s sake, saying the personalized nature of the law “doesn’t get any clearer than that,” while Justice Uzi Vogelman said simply that “the fact is the law is personal.”

The personally tailored nature of the law is critical to the petitions against it, since they argue that the High Court can strike down the legislation based on the doctrine of misuse of constituent power.

The court has never yet struck down a Basic Law, or an amendment to one, due to their quasi-constitutional nature, but has developed two doctrines that might enable it to do so, or otherwise intervene.

The doctrine relevant in the recusal law is misuse of constituent power, meaning a situation in which the Knesset improperly used its authority to legislate Basic Laws for a narrow, short-term, political, or personal reason.

Although the justices issued strong statements against the law during Thursday’s hearing, Hayut also made clear she was not convinced it should be struck down.

“A personal law will not always bring about the extreme result of annulment of [the law], especially not for a Basic Law,” she told the attorney representing the Knesset Legal Department, which thinks the court should not strike the law down.

She nevertheless challenged the attorney, asking, “Does the personal nature of this law not rise to the level of misuse of constituent authority” by the Knesset?

President of the Supreme Court Esther Hayut and Supreme Court Justices seen during a court hearing at the Supreme Court in Jerusalem, on August 3, 2023. (Yonatan Sindel/Flash90)

The High Court just last week used an “interpretative” ruling to strip the so-called Tiberias law, passed in July, of its personal aspect and ruled that it would come into effect only after the municipal elections in October.

The legislation enabled the acting mayor of Tiberias to run in the upcoming municipal elections, which he had previously been banned by law from doing.

In 2021, the High Court came very close to striking down an amendment to Basic Law: The Knesset, which had been passed in 2020 to extend the deadline for the approval of the state budget (to enable the troubled Netanyahu-Gantz coalition at the time to overcome its political differences).

The High Court ruled then that the amendment was a misuse of constituent authority by the Knesset and issued a “warning of cancellation,” but did not actually strike it down.

In another telling exchange during Thursday’s hearing, the Knesset’s attorney noted the problems with the recusal law but said that not every flaw in a piece of legislation and the court’s prior criticism of Basic Law amendments necessitates the annulment of that law.

“We have already expressed criticism, but it seems that it is falling on deaf ears,” Hayut shot back.

In a statement put out in the name of coalition party heads on Sunday night, several hours after the High Court announced its decision, they castigated the court for taking up the case and threatening to intervene over the legislation.

“The court does not have the authority to cancel Basic Laws and does not have the authority to determine that the Basic Law will enter into force at a later date,” the statement to the press said.

“Nor does any court have the authority to cancel the results of the elections and allow the removal of a prime minister [from office], which would abolish democracy at its foundation,” the statement continued, adding that striking down the law would “pull down the common ground between the branches of government which has been customary for many years.”

The party heads concluded: “The public in Israel needs at this time calm, dialogue, and consensus. At a time like this, responsibility and restraint are required on the part of all branches of government.”

The Movement for Quality Government in Israel, one of the petitioners against the recusal law, welcomed Sunday’s decision and what it said was the court “using its meager powers to preserve the rules of the democratic game in Israel” in the face of efforts by the Knesset to violate those rules.

“To our great regret, in the past year personal legislation has become a permanent fixture in the Knesset — which time and again changes and amends Basic Laws in order to adapt to the momentary needs of those who have been indicted and convicted as criminals,” the organization added.

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