High Court delays implementation of PM recusal law, in 2nd gov’t defeat this week

Justices rule 6-5 that law shielding Netanyahu from being ordered to recuse himself due to conflict of interest is personal in nature, and can only be applied after next elections

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

President of the Supreme Court Esther Hayut and justices at a High Court of Justice hearing on petitions against the government's recusal law at the Supreme Court in Jerusalem, September 28, 2023. (Chaim Goldberg/Flash90)
President of the Supreme Court Esther Hayut and justices at a High Court of Justice hearing on petitions against the government's recusal law at the Supreme Court in Jerusalem, September 28, 2023. (Chaim Goldberg/Flash90)

In the second major legal defeat this week for the government, the High Court of Justice ruled six to five on Wednesday to postpone the implementation of a controversial law shielding Prime Minister Benjamin Netanyahu from being ordered to recuse himself from office by the attorney general or the High Court itself, determining that it had been passed to personally benefit the premier.

The court ruled that the recusal law, an amendment to the quasi-constitutional Basic Law: The Government passed back in March, will now take effect only at the beginning of the next Knesset term, after the next general elections are held.

The majority ruled that the purpose of the recusal law was “clearly personal” in nature due to its stated purpose and timing, and therefore constituted an improper use of the Knesset’s power to pass and amend Israel’s quasi-constitutional Basic Laws.

This, they ruled, could be remedied by changing the implementation date of the legislation.

The recusal or incapacitation law changed an ambiguity in Basic Law: The Government whereby the attorney general and the High Court may theoretically have had the power to order a prime minister to recuse themselves from office under certain circumstances, potentially including a violation of a conflict of interest agreement such as one Netanyahu has signed.

In February, Attorney General Gali Baharav-Miara warned Netanyahu that he would be violating his conflict of interest agreement — signed to prevent the premier from acting to affect the outcome of his corruption trial — if he involved himself in his government’s controversial judicial overhaul legislation. Petitions were subsequently filed to the High Court asking it to instruct the attorney general to order Netanyahu to recuse himself because, the petitions argued, he was involved in legislation that could affect the identity of the justices who hear a likely eventual appeal in the Netanyahu trial.

Israeli Prime Minister Benjamin Netanyahu, left, and then-Supreme Court president Esther Hayut attend a ceremony in the Hall of Remembrance at the Yad Vashem Holocaust museum, on Holocaust Remembrance Day April 18, 2023. (Erik Marmor/Flash90)

As a result, the coalition passed legislation stipulating that the power to declare the prime minister incapacitated lies with the government and the Knesset alone, and based only on medical grounds.

The ruling is the second time in a week that the High Court has intervened in the legislation of Basic Laws, something it has never before done due to their quasi-constitutional status and the constitutional problems inherent in applying judicial review to constitutional arrangements.

Wednesday’s ruling fully actualized a judicial doctrine known as the misuse of constituent power, arguing that the Knesset may not abuse its power to pass quasi-constitutional Basic Laws for short term, political goals which had been developed but never applied before by the court. On Monday, the court struck down legislation barring courts from evaluating government decisions on the basis of the judicial standard of reasonableness.

The court had already expressed heavy criticism of the Knesset for similarly “abusive” legislation, such as an amendment to Basic Law: The Knesset to stave off elections in 2020, and warned that it fell foul of the misuse of constituent power doctrine, but had never actually struck down such a law, or otherwise intervened in one.

In its decision Monday to void the reasonableness law, the court fully actualized former High Court chief justice Esther Hayut’s doctrine known as “unconstitutional constitutional amendment,” after developing that principle in several previous rulings as well.

In theory, Wednesday’s ruling means that petitions requesting that the attorney general order Netanyahu to recuse himself from office could be submitted to the High Court immediately.

Officials in the Movement for Quality Government in Israel, one of the principal petitioners behind those original motions and against the recusal law itself, said, however, that it is unlikely it will file such petitions in the near future, since Netanyahu and the government are not currently dealing with judicial overhaul legislation.

In his ruling for the majority on Wednesday, Acting Supreme Court President Uzi Vogelman insisted that in democratic countries, the legislative body must consider the interest of the general public when passing laws, and not design them for the benefit of one specific person.

Acting Supreme Court President Justice Uzi Vogelman at a court hearing on postponing the nationwide municipal elections scheduled for the end of January until February 27, at the Supreme Court in Jerusalem, December 31, 2023. (Chaim Goldberg/FLASH90)

He wrote that when the Knesset formulated the recusal law, it did so specifically for the benefit of Netanyahu so that he could not be ordered by judicial officials to step down.

“The entire legislative process was done with the veil of ignorance lifted, and out of a stated goal and purpose to benefit a certain person — the current prime minister,” wrote Vogelman.

He referenced explicit comments of some coalition MKs, including Moshe Arbel, Tally Gotliv and David Amsalem, about the law being passed for Netanyahu’s benefit, as well as comments made by Netanyahu himself immediately after the passage of the legislation saying he was now free to involve himself in the judicial overhaul legislation without fear of being ordered to recuse himself.

“Until today my hands were tied. No longer. I am getting involved [in the judicial overhaul legislation issue],” Netanyahu said at the time.

“All of the above leads to the conclusion that within the scope of the doctrine of misuse of constituent authority, Amendment No. 12 [the recusal law] fails the test of generality,” wrote Vogelman.

As such, the implementation of the law must be delayed until the next Knesset to avoid the highly personal aspect of the amendment, Vogelman and the narrow court majority ruled.

Former chief justice Esther Hayut, who presided over the September hearing before retiring in October, similarly wrote in her ruling that the circumstances in which the law was passed “testified as a hundred witnesses that the principal purpose for which the amendment was legislated… was to provide a solution to concrete legal danger [a recusal determination] which threatened — in the eyes of the legislators — the serving prime minister.”

She said that this law did “severe and unusual harm” to the principle that everyone is equal before the law and that by extension, the Knesset had abused its power to pass and amend Basic Laws.

Prime Minister Benjamin Netanyahu (center) speaks with Education Minister Yoav Kisch in the Knesset, March 22, 2023. (Yonatan Sindel/Flash90)

Writing for the minority, Justice David Mintz argued that the court does not have the right to review or intervene in Basic Laws, rejecting the validity of the doctrine of the misuse of constituent authority, and also arguing that the law was not personal in its purpose or application, but rather has general applicability.

“The relevant question is whether if, in the test of the result, this is legislation which applies to just one party whose concerns the legislature is seeking to arrange,” wrote Mintz.

He pointed out that the wording of the recusal law means it applies to all prime ministers and that the previous formulation of the law had been vague and required clarification.

“The starting point for the debate in our matter should be this: this is a permanent amendment, which applies to any prime minister who is in office or who will be in office in the future, which concerns an issue that has arisen in the past (for example, in the case of Prime Minister Ariel Sharon and also in the case of Prime Minister Benjamin Netanyahu) that may also arise in the future, for which there is a lacuna in the Basic Law,” wrote Mintz.

“In my opinion, this is enough to conclude that we are not dealing with a personal amendment.”

He also rejected the contention of Vogelman, Hayut and others in the majority that the comments of MKs could be used to decisively determine the purpose of the law, noting that other coalition lawmakers had made arguments about the general and principled need for the amendment.

He pointed in particular to Likud MK Ofir Katz, who served as the chairman of the special Knesset committee that drafted and advanced the recusal law, who spoke specifically of the need to ensure that “the forced recusal of a serving prime minister elected by the citizens of Israel… must be determined only by the people and not by an unelected branch [of government] or a clerk.”

Hayut, Vogelman and justices Isaac Amit, Daphne Barak-Erez, Anat Baron (also now retired) and Ofer Grosskopf ruled to delay the implementation of the law.

Justices Noam Sohlberg, Mintz, Yosef Elron, Yael Wilner and Alex Stein ruled to reject the petitions and allow for its immediate implementation.

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