High Stakes: Israel's Supreme Court to Rule on Crucial Law That May Seal Netanyahu's Destiny

Israel's Supreme Court is currently occupied with a multitude of cases involving challenges to the government's actions under the leadership of Benjamin Netanyahu.

Within a month, the court will hear arguments on three cases, one of which pertains specifically to Netanyahu. This Thursday, there will be petitions regarding an amendment that aims to increase the difficulty of declaring a prime minister unfit for office. According to the current law, only the prime minister or the cabinet, with a two-thirds majority, can declare the leader unfit due to physical or mental incapacity. The cabinet's decision must then be approved by a two-thirds majority in the parliament, known as the Knesset. This amendment relates to one of Israel's Basic Laws, which serves as a quasi-constitution for the country.

The passage of the amendment preceded the initiation of legislation concerning a judicial overhaul package, endorsed by the right-wing government of Netanyahu. This package has caused division within the nation, triggering months of protests by individuals who assert that it erodes Israel's democracy and undermines its judiciary.

Israeli Prime Minister Benjamin Netanyahu departs from 10 Downing Street after holding a meeting with Britain's Prime Minister Rishi Sunak in London on Friday, March 24, 2023. (Photo: Alberto Pezzali/AP)

Israel's attorney general accuses Netanyahu of violating the law by interfering in judicial reform. The individuals filing the petition in the hearing argue that the amendment was specifically passed to benefit Netanyahu, who is currently facing corruption charges. They claim that this constitutes an abuse of constituent authority. If proven, this could potentially provide grounds for the Supreme Court to invalidate amendments to the Basic Law. However, it is important to note that the court has yet to strike down a Basic Law or any of its amendments.

Earlier this month, the Supreme Court listened to arguments regarding a law that was passed in July, restricting its authority to intervene in government actions deemed "unreasonable." This law was an amendment to a Basic Law. Additionally, there is a third petition targeting Justice Minister Yariv Levin, who has refused to assemble the committee responsible for selecting judges due to a disagreement on its composition. Amir Fuchs, senior researcher at the Israel Democracy Institutes Center for Democratic Values and Institutions, informed CNN that there has never been such an abundance of challenges to Basic Laws amendments in the Supreme Court.

"(Weve) never had so many hearings in the court so close together. This is a unique and unprecedented constitutional crisis," Fuchs said.

What law was changed?

Prior to this legal amendment, no written law governed the process of removing a prime minister from office due to their incompetence. However, Fuchs pointed out that there were previous instances in case law suggesting that the attorney general had the authority to make such a determination.

"I firmly believe that the previous system was flawed. It lacked clarity and required modification," Fuchs expressed. "However, it is evident that the motivation behind this law was purely personal."

This is due to the presence of petitions calling for Netanyahu's disqualification from serving as a result of his ongoing corruption trial. Notably, he has become the first current prime minister of Israel to stand as a defendant in court, facing charges of fraud, breach of trust, and bribery. It is important to mention that he vehemently denies any allegations of wrongdoing.

Israeli Prime Minister Benjamin Netanyahu is pictured opening the weekly cabinet meeting at his office in Jerusalem on December 31, 2017. The photo credit goes to GALI TIBBON/AFP/Getty Images.

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In a bid to retain his position as prime minister while facing an ongoing trial, Netanyahu reached a compromise with the court in 2020. As part of this arrangement, he consented to a conflict-of-interest declaration.

The declaration made by the attorney general at that time stipulated that Netanyahu was prohibited from participating in policy making that could impact the judicial system, such as the proposed judicial overhaul. Critics of Netanyahu have contended that specific elements of the overhaul could potentially facilitate his evasion of the corruption trial.

When Justice Minister Levin unveiled the government's intentions for the judicial overhaul earlier this year, Netanyahu asserted that his involvement was restricted due to the conflict-of-interest declaration.

In March, just after the amendment was approved to increase the hurdles for declaring a prime minister incapable of governing, Netanyahu declared his intention to take action. "Up until now, my hands have been tied," the prime minister remarked. "We have reached a ridiculous situation where by fulfilling my duties and intervening in the judicial overhaul legislation, I would have been deemed unfit to serve... Tonight, I hereby announce: It's time to put a stop to this. I will be actively involved."

What happens in the hearing?

A preliminary hearing on this case has already taken place with a panel of three judges. On Thursday, the arguments will be presented once more, but this time in front of eleven out of the fifteen justices of the Supreme Court.

Normally, the attorney general would present the government's case in a Supreme Court hearing. However, AG Gali Bahrav-Miara will not do so in this instance. Just like she did earlier this month during the hearing on the "reasonableness" law, she agrees with the petitioners that the amendment should not be upheld.

Israeli Prime Minister Benjamin Netanyahu eats an apple slice to mark the upcoming Jewish New Year holiday at a weekly meeting of his Cabinet in Jerusalem, Sunday, Sept. 10, 2023.

Ohad Zwigenberg/AP

Israel's democracy stands at a critical juncture as its highest court deliberates on a legislation that curtails its authority. Here's what you should be aware of:

According to Fuchs, should the amendment be invalidated, it would signify that the parliament exploited its constituent power for ulterior motives, specifically favoring Netanyahu instead of serving the common interests.

Fuchs observed that the expeditious passage of the bill, along with the remarks made on record during parliamentary discussions, unequivocally indicated that the law was designed to safeguard Netanyahu.

Furthermore, the Supreme Court might rule that the law is presently inactive and will only come into effect when the next parliament assumes power. This could potentially offer a solution to the complex constitutional predicament.

"This significantly mitigates the issue as it implies that only the upcoming Knesset term will be affected, thus providing no resolution to Netanyahu's individual predicament. Additionally, it allows the Knesset a sufficient timeframe to reconsider the current arrangement," Fuchs commented.

The court ruling must be issued before January 12, 2024, as the judges presiding over the case are set to retire by that date.

What other challenges to the Israeli governments judicial overhaul is the Supreme Court hearing?

The court is expected to make a decision on the petition challenging the law that invalidated the courts' authority to deem government actions as "unreasonable" by then. This particular challenge holds greater significance, as it marks the first time all 15 current Supreme Court justices have presided over the case. However, the ruling for this petition is anticipated to take more time compared to the one being heard on Thursday.

Moreover, there is a pending case in the Supreme Court regarding the justice minister's delay in organizing the committee responsible for appointing new Supreme Court justices. Prime Minister Netanyahu's administration seeks to revamp the selection process to grant greater influence to politicians. Although the committee was originally scheduled to convene last week, the meeting was postponed by Levin.

"It is crucial," Fuchs emphasized, referring to the challenge as an administrative matter rather than a petition against a fundamental law. This is because Levin might be compelled to comply with a court decision concerning a vital aspect of the judicial reform.

However, according to Fuchs, the true crisis may arise once the Supreme Court issues its three rulings, if Netanyahu and his government opt to disregard them. Despite facing inquiries from various news outlets, including CNN, he has not yet expressed a commitment to abide by the rulings.

"The government holds the responsibility for accepting the decision, making it within their authority. Just because Netanyahu is avoiding answering whether he will comply with the decision, it doesn't automatically imply that he won't," stated Fuchs.