Justice Vogelman: The court is entitled to review Basic Laws

High Court calls PM recusal law ‘clearly personal,’ indicates it may intervene

Setting up potential showdown, justices imply they may delay application of law that stops court removing PM; Netanyahu’s lawyer: Ouster by unelected official would be unthinkable

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

President of the Supreme Court Esther Hayut at the Supreme Court in Jerusalem, August 3, 2023. (Yonatan Sindel/Flash90)
President of the Supreme Court Esther Hayut at the Supreme Court in Jerusalem, August 3, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice asserted on Thursday in no uncertain terms that it views a recently passed law blocking the court from ordering the prime minister to recuse himself as a highly personal piece of legislation, and implied that it is considering an explosive ruling which would delay implementation of the law.

Supreme Court President Esther Hayut observed that the “fingerprints” of a plan designed to prevent Prime Minister Benjamin Netanyahu from being ordered to recuse himself were “very clear,” while her fellow panel member Justice Uzi Vogelman said simply that “the fact is the law is personal.”

The court’s three most senior justices presided over Thursday’s five-hour hearing, in a case in which, for the first time ever, the attorney general has joined petitioners in asking for a Basic Law to be canceled.

It is unclear when a ruling will be handed down, although it is possible that a second hearing will be heard with an expanded panel of justices.

Significantly, the three justices presiding over the hearing asked the petitioners’ attorneys pointedly on several occasions whether their concerns could be resolved by delaying implementation of the law — an amendment to Basic Law: the Government — similar to a ruling issued by the court just three days ago against another piece of coalition legislation, the so-called Tiberias law.

Netanyahu’s attorney made a spirited counter-argument, however, saying that the law was legitimate and should not be overturned by the court, since it was designed not specifically to benefit Netanyahu but rather to ensure that unelected officials cannot remove an elected prime minister from power.

In another important moment during the hearing, Vogelman insisted that the High Court is fully within its authority to exercise judicial review over Israel’s quasi-constitutional Basic Laws, including the coalition’s recusal law which amends Basic Law: the Government.

Supreme Court Justice Uzi Fogelman at a court hearing on August 2, 2023. (Yonatan Sindel/Flash90)

Were the court to void the law, it would mark the first time the High Court has struck down an amendment to a Basic Law.

Netanyahu and numerous coalition members have repeatedly challenged the right of the court to strike down quasi-constitutional Basic Laws.

In recent interviews with US media on separate legislation — a highly controversial amendment to Basic Law: The Judiciary that limited High Court oversight of the government — the prime minister has repeatedly refused to say whether he would adhere to a potential ruling in which the High Court of Justice strikes down a Basic Law, and warned the court against doing so. Other members of his Likud party have said such a ruling would be respected, but would nevertheless cause a crisis in the country.

Prime Minister Benjamin Netanyahu gives an interview to NBC News on July 31, 2023 (Screen grab used in accordance with Clause 27a of the Copyright Law)

However, several far-right ministers indicated Thursday that they would not respect a ruling striking down the recusal law. Heritage Minister Amichai Eliyahu told Galey Israel Radio: “We don’t need to respect the High Court decision just like it doesn’t respect the Knesset’s decision.” He said that even discussing the petitions was illegitimate, calling a potential voiding of the law “obviously illegal.”

Settlements Minister Orit Strock told the Ynet news site that if the law is struck down, “the meaning is that the High Court is madly pushing itself toward the abyss, because it is essentially saying: ‘Folks, let’s give up on democracy.’”

Ministers in Netanyahu’s Likud party also slammed the court for even holding the hearing. Public Diplomacy Minister Galit Distel Atbaryan tweeted: “Right now, a small group of unelected people is discussing the question of whether the election results representing millions of people should be canceled, without anyone giving it the authority to do so; and if you have a problem with that concept, you are [apparently] enemies of democracy.”

President of the Supreme Court Esther Hayut (center) together with Justice Uzi Vogelman (left) and Justice Issac Amit at the Supreme Court in Jerusalem, August 3, 2023. (Yonatan Sindel/Flash90)

Tailor-made for Netanyahu?

In March, the coalition passed an amendment to Basic Law: the Government, eliminating the possibility of the High Court ordering a prime minister to recuse himself. The law stipulates that this power will only lie with the government and the Knesset based on medical grounds, and requires the support of 75 percent of cabinet ministers and of 80 lawmakers in the 120-member parliament.

The legislation was passed against the background of petitions filed to the attorney general demanding she order Netanyahu to recuse himself from office for allegedly violating a conflict of interest agreement he signed in 2020, under the auspices of the High Court, allowing him to continue serving as prime minister despite being indicted on corruption charges.

The 2020 agreement forbade Netanyahu from making senior law enforcement and judicial appointments or getting involved in legislative matters that may impact his trial.

The central claim of the petitions against the law argues it was tailor-made for Netanyahu to prevent the court or the attorney general from ordering him to recuse himself.

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

Related — A time for reason: Will the High Court strike down government’s reasonableness law?

In a few highly significant comments during one stage of the hearing, Vogelman insisted that the High Court does indeed have the authority of judicial review over Basic Laws, despite them having a quasi-constitutional nature.

“The High Court is entitled to review Basic Laws, in accordance with doctrines that were established in our [previous] rulings, by an expanded bench,” Vogelman said. “This is not totally unplowed land. Perhaps it still needs to be plowed, but the furrows are already there,” he asserted.

Addressing the claims that the law was tailored for Netanyahu, Hayut and Vogelman both stated explicitly that they believed the legislation was very much of a personal nature.

“[Likud] MK Moshe Saada said two days before the law was passed in its second and third readings ‘we legislated it because of Netanyahu.’ You can’t get clearer than that,” noted Hayut in the hearing.

“These things are explicit, the fingerprints are very clear,” Hayut commented at another stage, while Vogelman said: “The fact is that the law is personal, it’s hard to arrive at another conclusion.”

Hayut did, however, tell attorney Hanner Helman, representing the attorney general, whose position is that the law should be canceled, that he had to demonstrate why a personal law is necessarily a misuse of constituent authority.

“The law is so personal that it fails the test that a law have general applicability, it completely contravenes the idea that basic laws address general situations since it is designed specifically for a personal issue,” countered Helman.

Despite Attorney General Gali Baharav-Miara’s position that the recusal law should be struck down, Hebrew media reports earlier this week indicated she is not considering ordering Netanyahu to recuse himself, saying such an eventuality was “not on the table.”

Justice Isaac Amit asked Helman whether the problem of the personal nature of the legislation could be resolved by delaying implementation. Helman rejected this idea, saying the personal nature of the law was so severe that it must be considered to amount to misuse of constituent power.

Vogelman joined Amit’s query, positing that if implementation of the law would be delayed, “a bad law would remain, but the personal aspect would be annulled.”

Hayut also challenged Attorney Eliad Shraga, founder of the Movement for Quality Government, which is one of the petitioners against the law, pointing out that the laws for the prime minister’s recusal are necessarily personal since they relate to the office of just one individual.

Eliad Shraga, founder of the Movement for Quality Government in Israel, attends a court hearing, August 3, 2023. (Yonatan Sindel/Flash90)

“This is an amendment to an existing law and the natural place is in Basic Law: the Government,” Hayut added.

Shraga rejected her argument, saying the amendment was “an aggressive intervention into the realm of the judiciary” since it leaves no place for judicial review, even over recusal on health grounds.

‘No such thing as legal recusal’

Attorney Michael Ravillo, representing Netanyahu, rejected arguments that the purpose of the law was unfitting, however, and argued that it was designed to prevent a prime minister from being ejected from power by unelected officials.

“There is no such thing as legal recusal. This has no comparison in the world,” contended Ravillo.

Attorney Michael Ravillo, representing Prime Minister Benjamin Netanyahu, arrives for a hearing at the Supreme Court in Jerusalem, on August 3, 2023.(Yonatan Sindel/Flash90)

“The Knesset is saying clearly through this [recusal] law that it is not prepared in any way that a prime minister can be ousted from office by a clerk or unelected official,” he continued, and argued that since this was a fair use of the Knesset’s power as constituent authority the petitions arguing misuse of such power should be dismissed.

“Is the Knesset not allowed to legislate this? Where is that written?” he demanded, adding, “The good of the public is that it be clear what is recusal and who can do the recusing.”

Ravillo denied the allegations that the law was designed personally for Netanyahu, telling the three presiding High Court justices that the legislation had broad application to any future prime minister, and clarified the previously unclear legal situation regarding recusal.

And he also pointed out that despite some coalition MKs, such as Saada, stating during the legislative process that the law was designed for Netanyahu, other MKs such as Likud MK Ophir Katz said at the time the law was designed to clarify the legal status of the office of the prime minister as an institution, not of Netanyahu as an individual.

MK Ofir Katz, chairman of the Knesset House Committee, leads a hearing, March 12, 2023. (Yonatan Sindel/Flash90)

Katz was the primary sponsor of the bill and chaired the special Knesset committee which prepared the legislation.

Before the amendment was passed in March, Article 16 of Basic Law: the Government stated that should a prime minister be temporarily unable to perform his duties, a deputy prime minister would take his place during that time, but it was for the most part seen as referring to a premier’s health concerns, not his legal difficulties.

In 2008, the High Court of Justice did entertain the idea that Article 16 might relate to legal issues facing the prime minister, when a petition to the court asked it to order the attorney general at the time to recuse then-prime minister Ehud OImert from office due to the criminal investigations which were underway against him.

The High Court stated it was willing to assume Article 16 was not limited to health matters, and that criminal investigations were a significant problem for the prime minister, but said that could only lead to recusal in rare and exceptional circumstances, and therefore rejected the petition.

Future hearings

Alongside its deliberations on the recusal law, the High Court will in September hear petitions in two other highly sensitive cases with potentially explosive results.

On September 7, the court will hear petitions demanding the court order Justice Minister Yariv Levin to convene the Judicial Selection Committee, a step he has refused to take in recent weeks. Levin is seeking to first enable coalition control of almost all judicial appointments, under the terms of draft legislation that would remake the Committee. The legislation has cleared its first reading, was suspended in March, but is awaiting its final readings in the Knesset, and could be passed at short notice.

On September 12,  an unprecedented panel of all 15 High Court justices will hear petitions demanding the court strike down the coalition’s highly controversial reasonableness limitation law. Enacted last week, it was the first piece of the coalition’s judicial overhaul legislation to become law.

Most Popular
read more: