In split with AG, Knesset legal adviser tells High Court not to void recusal law

Sagit Afik says legislation fills gap in law, argues that it does not affect PM’s conflict of interest deal and therefore shouldn’t be delayed or struck down

Knesset Legal Adviser Sagit Afik speaks during a hearing of the Constitution, Law and Justice Committee, July 17, 2023. (Yonatan Sindel/Flash90)
File: Knesset Legal Adviser Sagit Afik speaks during a hearing of the Constitution, Law and Justice Committee, July 17, 2023. (Yonatan Sindel/Flash90)

Dissenting with the position of Attorney General Gali Baharav-Miara, Knesset legal adviser Sagit Afik on Friday told the High Court of Justice it should not strike down or delay implementation of a controversial recently passed law barring the court or the attorney general from removing a prime minister from office.

Petitioners against the legislation — an amendment to one of Israel’s quasi-constitutional Basic Laws — argue that it was designed, among other things, to release Prime Minister Benjamin 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.

The coalition is widely reported to have passed the law due to concerns that Baharav-Miara or the High Court could order Netanyahu to recuse himself over his ostensible conflict of interest.

A hearing on the recusal legislation before an 11-justice panel is scheduled for September 28, following a preliminary discussion last month.

Following the August hearing, the court issued an interim injunction against Netanyahu and the Knesset demanding they explain why implementation of the law should not be delayed to the next Knesset, to circumvent the personal aspect of the legislation — a strong hint that it is considering such action.

Afik argued Friday that the legislation filled a gap in “a lacking” legal arrangement that existed before it was passed, adding that, “judicial review should be based on the purpose and not the motives of the legislation.”

“The Basic Law amendment has no effect on the prime minister’s conflict of interest agreement and his obligations under it,” she stated.

Afik added that “since the legislator explicitly chose to implement the law under question with immediate effect, there is no place to interfere with it, particularly when it is a Basic Law.”

Defenders of that law and others passed by the current government have frequently contended that the High Court cannot strike down Basic Laws, while opponents have warned of the potential use of the title to shield any law from judicial oversight.

Without the law, the court would theoretically have the power to take the step of instructing the premier to step down, if it were to accept petitions claiming Netanyahu was in violation of the conflict of interest agreement.

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

That agreement prohibits Netanyahu from being involved in steps that could affect his trial down the line, such as judicial appointments and arguably, any broader changes to the judiciary, such as the ones his government has been advancing.

Afek’s submission contradicts the opinion of Baharav-Miara, who on Monday urged the High Court to rule that the recusal law would only come into effect after the next election, arguing that Basic Laws “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.”

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)

Netanyahu’s legal counsel, appointed after the attorney general refused to defend the law, said Thursday that the legislation was aimed at defending the democratic principle that only the voters determine the identity of their leader, and objected to the court tampering with its implementation.

Citing Abraham Lincoln’s Gettysburg Address, Michael Rabello insisted in his response to the petitions that a court or attorney general-ordered recusal would contravene the basic foundations of democracy, and that the legislation merely codified this principle.

He also contended that even before the amendment was passed by the coalition in March, the clauses of Basic Law: The Government relating to the recusal of the prime minister only ever referred to physical and mental incapacitation and that there never had been any legal basis to enable the High Court or the attorney general to order a prime minister to recuse themselves from office.

Similar to the Knesset legal adviser, he also argued that the law did not change the prime minister’s obligation to the 2020 conflict of interest agreement.

After Baharav-Miara wrote to Netanyahu in February that the conflict of interest agreement barred him from being involved in legislation that forms part of the highly divisive judicial overhaul legislative package, the prime minister became increasingly concerned that she would order him to recuse himself, according to numerous media reports.

Because the government-backed amendment was seemingly tailored to avoid this situation — Netanyahu publicly announced that he was involving himself in the overhaul hours after the law passed — and in light of comments by coalition MKs that the law was being advanced to stop Netanyahu from being removed from office in such a manner, the petitioners argue that the Knesset abused its authority to pass and amend Basic Laws and that the legislation should therefore be struck down.

Jeremy Sharon contributed to this report.

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