Israel’s Supreme Court to Revisit Incapacitation Law Amendment: A Constitutional Debate

Israel’s Supreme Court to Revisit Incapacitation Law Amendment: A Constitutional Debate

Upcoming Supreme Court Discussion on Incapacitation Law Amendment

On September 28, the Supreme Court of Israel is set to deliberate on petitions seeking to nullify an amendment to the Basic Law of the Government. This amendment allows the Prime Minister to be incapacitated only due to physical or mental inability. The law was enacted swiftly following a petition calling for incumbent Prime Minister Benjamin Netanyahu’s incapacitation. Consequently, it allows him to bypass the conflict of interest arrangement that prevents his involvement in the legal revolution.

The amendment stipulates that the incapacitation of the Prime Minister can only take place if he himself declares that he is physically or mentally incapable of fulfilling his role. Alternatively, incapacitation can occur if 75 members of the government request it against his will.

Contesting Parties and Their Arguments

The annulment petitions were filed by the Movement for Quality Government and Oded Forer of the Yisrael Beiteinu party. The Movement for Quality Government argues that the amendment undermines the basis of Israeli governance, where the judiciary system provides a balance and restraint to the executive and legislative authorities.

The Movement also objects to the immediate application of the law, suggesting that it sets a dangerous precedent where an individual in power can alter constitutional arrangements for personal convenience.

In previous discussions on the amendment, the Attorney General’s office asserted that the amendment should be disqualified. They argued that a Basic Law should not serve as a private resource to remove personal problems from the realm of ethical conduct and criminal law.

Contrary Opinion of Knesset’s Legal Advisor

However, Sagit Afik, the legal advisor to the Knesset, maintains that there is no reason to halt the amendment’s implementation. As per Afik, it is acceptable to establish Basic Laws relating to the relations between authorities with a deferred application, i.e., from the next Knesset. However, since the legislator explicitly chose to establish the law with immediate application, Afik argues that there is no reason to intervene.

Netanyahu’s Response to the Supreme Court

Prime Minister Netanyahu responded to the Supreme Court by arguing that turning the order into a permanent one equates to a precedent-setting and exceptional intervention in the foundational legislation of the constituent authority.

Implications for Israel’s Constitutional Framework

The Supreme Court’s decision will have significant implications for Israel’s constitutional framework. If the court decides to uphold the amendment, it could further ignite the debate on the balance of power between the judiciary and the legislative authorities. If it decides to nullify the amendment, it may lead to political upheaval, given the current Prime Minister’s firm stance on the matter.

Regardless of the outcome, this case highlights the ongoing tension between the judiciary and the legislative authorities in Israel. It also underscores the complexities involved in constitutional lawmaking, particularly in cases where personal interests are intertwined with national governance.