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Israel’s Supreme Court has begun hearing petitions against a new law that makes it difficult to declare a prime minister unfit for office.
Eleven of the Supreme Court’s 15 justices were hearing arguments on Thursday. Within two months, the court had heard arguments in three cases challenging laws passed by Benjamin Netanyahu’s government this year.
But Thursday’s petition affects Netanyahu personally more.
The law stipulates that the Prime Minister himself or the Council of Ministers, by only a two-thirds majority, can declare a leader unfit, only “due to physical or mental incapacity.” The Cabinet vote would then need to be ratified by a two-thirds majority in Parliament, known as the Knesset. The amendment is a change to one of Israel’s basic laws, the closest thing the country has to a constitution.
The amendment was passed before legislation began on a judicial reform package pushed by Netanyahu’s right-wing government, which has divided the country and led to months of protests by those who say it undermines Israel’s democracy and weakens the judiciary.
The petitioners at Thursday’s hearing say the amendment was passed solely to benefit Netanyahu — he faces an ongoing corruption trial — making it an “abuse of constituent power.” This is one of the grounds on which the Supreme Court can, in theory, overturn amendments to the Basic Law. However, the Court never invalidated or amended the Basic Law.
Yitzhak Bert, a lawyer defending the Knesset, admitted before the Supreme Court on Thursday that the law in question benefited the prime minister personally, but insisted that the legislature had the authority to pass it because it had a democratic mandate and that the court should not strike it down. He admitted that the law had flaws, but they did not rise to the level that would require its abolition.
Supreme Court President Esther Hayut said on Thursday that the court is not discussing repealing the law, but rather postponing its implementation.
Earlier this month, the Supreme Court heard arguments about another law, passed in July, that stripped it of its ability to stop government actions that judges ruled were “unreasonable.” It was also an amendment to the Basic Law. (The third petition is directed against Justice Minister Yariv Levin, who refused to convene the committee that selects judges, amid a dispute over its composition.)
Amir Fuchs, a senior researcher at the Israel Democracy Institute’s Center for Democratic Values and Institutions, told CNN that there have never been “so many challenges” in the Supreme Court to amendments to basic laws.
“(We have never) had so many court hearings so close together. “It is a unique and unprecedented constitutional crisis,” Fox said.
Until that law was changed, there was no written legislation dictating how a prime minister could be removed from office because he is “unfit” to serve, although Fox said there was precedent in case law suggesting the attorney general could make that ruling.
“I think we had a flawed arrangement before. It was very vague. I asked for an amendment,” Fox said. “But it is very clear that the motivation behind this law was completely personal.”
This is because there are petitions to declare Netanyahu unfit to serve due to his ongoing corruption trial. He is the first Israeli prime minister to appear before the court as a defendant, and is tried on charges of fraud, breach of trust, and bribery. He denies any wrongdoing.
As part of an agreement with the court to continue serving as prime minister despite his ongoing trial, Netanyahu agreed in 2020 to declare a conflict of interest.
The attorney general decided at the time that the announcement meant that Netanyahu could not participate in policy-making that affected the judicial system — such as judicial reform. Netanyahu’s opponents say that some aspects of the reform could make it much easier for him to emerge from a corruption trial.
Earlier this year, when Justice Minister Levin announced the government’s plans for judicial reform, Netanyahu said his hands were tied and that he could not participate due to declaring a conflict of interest.
But in March, hours after the amendment was passed making it harder for a prime minister to be declared unfit for office, Netanyahu announced he would intervene.
The Prime Minister said at the time: “Even today, my hands are tied.” “We have reached a ridiculous situation where, had I intervened (in judicial reform legislation) as my job required, I would have been declared unfit to serve… Tonight I report to you: Enough is enough. I will participate.”
A preliminary hearing has already been held with three judges on the issue. On Thursday, arguments were heard again, this time before 11 of the Supreme Court’s 15 justices.
Normally, a prosecutor would present the government’s case at a Supreme Court hearing, but Attorney General Gali Bahrav Meara did not do so. She agrees with the petitioners that the amendment should not stand, as she did earlier this month during a hearing on the “reasonableness” law.
Fox said the justices could strike down the amendment, declaring that Parliament had committed an “abuse of constituent power.” This will be in order to pass legislation not for public purposes but for political purposes, in favor of a specific person: Netanyahu.
Fox noted that the timing of the bill — which was introduced and passed in just a few weeks — and on-the-record comments made during the bill’s discussions in Parliament made it clear that the law’s purpose was to protect Netanyahu.
The Supreme Court could also declare the law to be “inactive for the time being,” and will not be active until after the next Parliament takes office. This may be a way out of the thorny constitutional situation.
“It eliminates most of the problem because once it is decided that it is only active in the next Knesset, it means it will not solve any personal problem for Netanyahu, and it gives the Knesset time to rethink the arrangement,” Fox said.
The court’s decision must be issued no later than January 12, 2024, due to the retirement of the judges hearing the case.
The court must also decide by then on the petition filed against the law, which eliminated the court’s ability to declare the government’s actions “unreasonable.” This is a much greater challenge, as all 15 current Supreme Court justices are taking up the case for the first time. Ruling on this petition is expected to take longer than the ruling that will be heard on Thursday.
In addition, the Supreme Court is scheduled to consider an appeal filed by the Minister of Justice to delay the convening of the committee to select new judges for the Supreme Court. Netanyahu’s government wants to reshape how judges are selected in Israel to give politicians more influence.
The committee was supposed to meet last week, but Levin postponed the meeting.
“It’s very important though [an] “An administrative matter, not a petition against a statute,” Fox said of the challenge, where Levin could be asked to follow a court ruling on a key element of judicial reform.
But the real crisis could come after the Supreme Court issues the three rulings, Fox said, if Netanyahu and his government choose to challenge them. Despite repeated questions from CNN and others, he has not yet committed to pursuing it.
“The matter is in the hands of the government because it can accept the decision. “Although (Netanyahu) is avoiding the question of whether he will abide by the decision, that does not mean he will not do so,” Fox said.
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