Suzie Navot

The decimation of restraints on government power

As with abolishing the reasonableness doctrine, the Incapacitation Law exempts the country's leaders from judicial oversight

Less than 24 hours after the Knesset passed the “Reasonableness Law,” which absolves the government and its ministers of their obligation to act reasonably towards the citizens of Israel and prevents the Supreme Court from intervening in their decisions, the attorney general filed her professional opinion to the Supreme Court on an entirely different matter: the “Incapacitation Law.”

The “Incapacitation Law” is not technically a law. It is an amendment to the Basic Law: The Government. Similarly, the “Reasonableness Law” is also not a law, but rather an amendment to the Basic Law: The Judiciary. It turns out that there is a connection, and even a strong connection, between these two amendments.

Let’s briefly recall the incapacitation story. Until recently, the Basic Law: The Government, stipulated that if a prime minister was “incapacitated” — he or she would be replaced by a substitute. The court ruled that this did not only take medical incapacitation into account, but also a situation of “legal incapacitation.” A few years ago, prior to the formation of the Gantz-Netanyahu government, the Supreme Court authorized Netanyahu, an indicted prime minister to form a government, but determined that the tenure must be subject to a conflict-of-interest agreement. This is the famous case known as “11-0.”

During the tenure of the current government, following the declaration of the “judicial overhaul,” the attorney general clarified that Prime Minister Netanyahu was bound by the agreement, preventing him from dealing with issues connected to the judicial system. Petitions were filed to the Supreme Court arguing that Netanyahu had continued to advance changes to the judicial system, in which the petitioners requested that the Supreme Court declare the prime minister incapacitated. The Supreme Court directed the respondents (including the prime minister) to file preliminary responses to the petitions.

The coalition’s response did not take long: several ministers attacked the “illegitimate hearing in the Supreme Court regarding the prime minister’s ‘incapacitation,'” and then the Knesset amended the Basic Law and changed the definition of incapacitation. Incidentally, the amendment passed three days prior to the final date for filing responses to the Supreme Court. The amendment regarding incapacitation determined that incapacitation was “only on medical grounds.” The legal incapacitation vanished into thin air.

This time, petitions were filed to the Supreme Court regarding the very amendment of the incapacitation clause. The petitioners wish to revoke the amendment. These are petitions against a Basic Law, just like those filed this week against the reasonableness amendment.

What do the two amendments share in common?

The incapacitation amendment aims at giving the prime minister an “exemption” — an exemption from the obligation to adhere to his conflict-of-interest agreement. After all, after the amendment passed, it is no longer possible to declare a prime minister incapacitated on legal grounds, even if he violates the conflict-of-interest agreement that had been a precondition for his continued service in office. A Basic Law was amended in order to exempt someone from his legal obligation. In addition, the incapacitation amendment’s purpose was to prevent the court from dealing with the issue of legal incapacitation and even to prevent it from hearing and ruling on the petitions that were filed on the matter.

And what is the purpose of the reasonableness amendment? Essentially, it is exactly the same thing: To grant the government an “exemption” — an exemption from its obligation to make reasonable decisions. An exemption from its obligation of reasonableness towards the citizens of the country. And in addition, to prevent the court from dealing with the reasonableness of the ministers’ and government’s decisions.

Two amendments, of two different Basic Laws and with different characteristics, but both with the exact same purpose: To remove all restrictions, so that those in power can act against the rules and prevent the Supreme Court from intervening.

Each of these amendments will come before the Supreme Court. The grounds upon which the petitioners wish to disqualify them are not necessarily identical. There is more than one ground for revoking a Basic Law. But it is important to emphasize: the attorney general’s position, according to which the incapacitation amendment should be disqualified by the Supreme Court, sets a precedent. The attorney general is requesting the Supreme Court disqualify an amendment to a Basic Law due to an “abuse of constitutional power.” Her position is well-reasoned, thorough, and courageous. The Supreme Court has never canceled a Basic Law due to its content. But then again we have never been in the situation we are in today.

About the Author
Professor Suzie Navot is a professor of constitutional law and the vice president of the Israel Democracy Institute.
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