Knesset can’t allow court ‘to lead us into void,’ says minister ahead of key hearing

Ministers Shlomo Karhi and Idit Silman paint High Court hearing on government recusal law as an attack on democracy

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

Communications Minister Shlomo Karhi seen before the weekly cabinet meeting at the Prime Minister's Office, September 10, 2023. (Chaim Goldberg/Flash90)
Communications Minister Shlomo Karhi seen before the weekly cabinet meeting at the Prime Minister's Office, September 10, 2023. (Chaim Goldberg/Flash90)

Two cabinet ministers denounced the High Court of Justice on Wednesday over the hearing it is scheduled to hold the following day on petitions demanding it annul a controversial piece of government legislation that bars the court from removing the prime minister from office.

Communications Minister Shlomo Karhi and Environmental Protection Minister Idit Silman both claimed the hearing was an existential threat to democracy, and argued that any ruling against the legislation would essentially overturn the results of November’s election.

A court ruling on the legislation would not, however, have any immediate bearing on Prime Minister Benjamin Netanyahu’s ability to serve as premier. Rather, it would allow the court to hear petitions that have been submitted requesting that it order Netanyahu to recuse himself for allegedly violating a conflict of interest agreement — signed under the auspices of the court — that enabled him to serve as prime minister despite being under criminal indictment.

The comments by both ministers were made just before a cabinet meeting at the Prime Minister’s Office Wednesday morning.

“The High Court is going to cancel the elections and say there is no democracy, that the votes of Israeli citizens have value but the voice of the attorney general is worth millions [of votes because] she can tell the prime minister, ‘Go home, you are recused from office because I don’t like you, because you made an unreasonable decision,’” Karhi told reporters outside the cabinet room.

“This is unacceptable. I hope that the High Court will regain its composure and not lead us into the void. The Knesset cannot allow this,” he added.

Environmental Protection Minister Idit Silman speaks during a debate in the Knesset, August 16, 2023. (Yonatan Sindel/Flash90)

Silman also represented the hearing as an attack on democracy.

“Tomorrow there will be a hearing in the High Court that will deal with the question of whether or not to cancel Israeli democracy,” she declared.

“The judges will sit and decide whether or not to throw out the two and a half million votes that elected the current government. The question is whether you can call this democracy.”

The recusal law, passed in March this year, stipulates that the power to declare the prime minister incapacitated lies only with the government and the Knesset, on medical grounds alone, and requires the support of 75 percent of cabinet ministers and of 80 lawmakers in the 120-member parliament.

It is an amendment to Basic Law: The Government, one of Israel’s 3 quasi-constitutional Basic Laws, which makes striking it down or intervening at all more constitutionally problematic for the High Court.

Some MKs have openly acknowledged that the legislation was passed in order to thwart any possible scenario in which the High Court or the attorney general can order Netanyahu to recuse himself from office.

Supreme Court President Esther Hayut (center) alongside Justices Uzi Vogelman (left) and Isaac Amit (right) during a hearing on petitions against the coalition’s recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

Netanyahu and the coalition were specifically concerned that such a step might be taken if it was deemed by the court or the attorney general that Netanyahu is in violation of his 2020 conflict of interest agreement, which prevents him from being involved in judicial appointments or legislation that might affect the process or outcome of his ongoing trial on corruption charges.

The attorney general argued in her response to the court, opposing the legislation, that the law could “establish a pattern of misuse of the term ‘Basic Law’ in order to create a shelter for law-breaking, harm ethical conduct, and make pending legal proceedings irrelevant,” and called for the court to interpret it as only coming into effect in the next Knesset so as to remove the personal aspect of the law.

In a preliminary hearing on the petitions against the law last month, the three most senior High Court justices said it was clear the legislation was tailored for Netanyahu, and issued an interim injunction demanding the government explain why its implementation should not be delayed until after his term of office.

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