Netanyahu lawyer: Court voiding recusal law would do ‘mortal harm’ to right to vote

Quoting Lincoln, attorney rejects petitioners’ claim that law barring court or AG from ordering PM to step down was tailored to let Netanyahu violate conflict of interest deal

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

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)
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)

Prime Minister Benjamin Netanyahu’s lawyer told the High Court of Justice Thursday that a recently passed law barring the court or the attorney general from ordering a prime minister to step down was aimed at defending the democratic principle that only the voters determine the identity of their leader.

Citing Abraham Lincoln’s Gettysburg Address, Attorney Michael Rabello insisted in his response to petitions against the government-backed recusal law that recusal ordered by the High Court of Justice or the attorney general would contravene the basic foundations of democracy, and that the legislation approved in March merely codified this principle.

Netanyahu’s legal counsel — appointed after Attorney General Gali Baharav-Miara refused to defend the government’s position and decided to argue against it — also claimed that the court has no authority to intervene in the legislation because it is an amendment to one of Israel’s quasi-constitutional Basic Laws which, he contended, can only be reviewed by the Knesset. Another government lawyer has made similar claims in a separate hearing earlier this month on petitions against the coalition’s reasonableness law.

A hearing on the recusal legislation before an 11-justice panel is scheduled for September 28.

Last month, the High Court held a preliminary hearing for the petitions against the law, which argue that the legislation was personally tailored to prevent the court or the attorney general from ordering Netanyahu to recuse himself, and therefore is unfit to be part of a Basic Law.

Without the law, the court would theoretically have the power to take such a step had it accepted petitions claiming Netanyahu was in violation of a conflict of interest agreement he signed under the auspices of the High Court in 2020 to allow him to serve as prime minister while on trial on corruption charges.

The petitions contend that the personal nature of the recusal legislation amounts to the “misuse of constituent authority” by the Knesset when it passed the amendment, one of two doctrines the court has asserted in the past that can be used to strike down a Basic Law.

Left: Attorney General Gali Baharav-Miara in Tel Aviv, June 20, 2023. (Tomer Neuberg/Flash90); Right: Prime Minister Benjamin Netanyahu in the West Bank settlement of Ma’ale Adumim, September 1, 2023. (Olivier Fitoussi/Pool)

On Monday, Baharav-Miara 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.”

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

In the written response to the petitions submitted to the court, Rabello began his argument by insisting that at the root of the issue lay the principle that political leaders can only be replaced at the ballot box, and not through judicial intervention.

“Democracy is government of the people, by the people, for the people,” Rabello wrote, quoting former US president Lincoln, and adding: “In a democracy, those who lead the nation are chosen by the nation.”

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.

“The purpose of the amendment was to clarify what was clear all the time: recusal is an incident of physical or mental incapacitation alone, which if occurs can be determined only by the prime minister or elected officials,” wrote Rabello.

“Postponing the implementation of Amendment 12 and leaving open the theoretical option (which anyway contradicted the previous law) of recusing [the prime minister] for reasons other than physical or mental [illness] is what would do mortal harm to the electorate’s right to vote.”

He also argued that the law did not change the prime minister’s obligation to the 2020 conflict of interest agreement.

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.

Attorney Michael Rabello at a hearing of the High Court of Justice for petitions against the coalition’s prime minister recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

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.

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.

Rabello argued, however, that the coalition began advancing the legislation before petitions were even filed requesting that the High Court or the attorney general order Netanyahu to recuse himself.

He also contended that despite its timing, the law was formulated in a general and long-term manner, and therefore does not fit the criteria for the court’s doctrine of “misuse of constituent authority” by which the law might be struck down or reinterpreted.

Rabello rejected the court’s right to use such a doctrine in the first place and said that even if it had such authority, it would not be applicable to the recusal legislation.

He also rejected the court’s authority to have the law come into effect at a later date, saying the Knesset had “clearly decided in a deliberate and informed decision” that the amendment would come into immediate effect and even rejected suggestions to delay implementation.

Changing the implementation date would amount to an act of legislation by the court which it is unauthorized to do, Rabello argued.

“This is a constitutional amendment which is a general, inclusive, permanent and stable constitutional arrangement based on a public and political purpose,” the attorney maintained.

“The purpose of the constitutional amendment was to promote governmental stability and legal certainty and to establish that changes of government in the State of Israel are done by the elected echelon and through the mechanisms accepted in constitutional law.”

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