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Incapacitation of a Prime Minister- What is in the Amendment to the Law and will the High Court (“Bagatz”) Repeal it?

HCJ (2412/23) recently heard petitions against the amendment to Basic Law: The Government pertaining to incapacitation of a Prime Minister. What is going on?

One line answer:

The amendment to the law proposes to clarify under which circumstances a Prime Minister is considered “incapacitated”, in a move designed to refute the idea of “legal incapacitation”, an idea that aims to circumvent the basic law’s provision that a prime minister may be impeached only after a final criminal conviction. 

In March of this year, the Knesset amended the section in Basic Law: The Government that relates to the Prime Minister being “incapacitated”. This amendment is an addition to an existing section of the basic law. The purpose of this section is to prevent a vacuum of power when a prime minister is unable to perform his duties and to transfer his authorities to a temporary substitute.

The original arrangement designed the procedure for temporary or permanent incapacitation but did not clarify which conditions would mandate incapacitation and what the mechanism for declaring it was. Before the amendment, the basic law stated: “Should the Prime Minister be temporarily incapable of performing his duties, his position shall be performed by the Substitute Prime Minister”. The law further stated that after 100 days of incapacitation, the prime minister would be considered permanently incapacitated.

The amendment added a clarification: “The incapacity of the Prime Minister to perform his duties… shall be due to physical or mental inability only”. In other words, the amendment made clear the content of said “incapacity” – a lack of functional ability due to a physical or mental constraint that renders him incapable. The amendment also established a mechanism and procedure for declaring a prime minister’s temporary incapacitation.

Why did the Knesset move to amend the law? The need for the amendment arose when the idea of “legal incapacitation” began to gain traction. According to this idea, a situation may arise wherein the prime minister is incapable of fulfilling his duties due to legal reasons, as, in our case, due to criminal proceedings against him. This idea found, to some extent, a ready ear in the Supreme Court. In petitions submitted after the last elections against granting Netanyahu the mandate to form the government due to the criminal proceedings against him, the judges did not reject the possibility that a “legal incapacitation” could be formed.

Later, a petition was filed against the government AG to declare the Prime Minister “legally incapacitated”, and the Court directed the AG to respond to the petition and justify her not doing so. The coalition saw this as an indication that the Court is willing to make the idea of “legal incapacitation” a reality, pushing them to legislate the amendment that clarifies incapacitation as physical and mental incapacitation alone and establishes that the AG cannot declare the Prime Minister incapacitated.

It is important to understand that the idea of “legal incapacitation” is an attempt to create an alternative route to impeaching a prime minister. The basic law categorically states that a prime minister can be removed only after a final criminal conviction, not when facing criminal charges. That is the arrangement established deliberately in 2001. In general, democratic states establish extraordinary and exceptional mechanisms for impeaching heads of state who are under criminal investigation, in order to prevent the AG from impeaching an elected leader and nullifying the election results.

At the High Court hearing, a claim against the amendment maintained that the amendment was “personal”, meaning, it was crafted to benefit a specific prime minister. It is important to note that there is no rule against personal legislation. Such legislation is simply suspect as inappropriate, since laws should reflect rules of principle and not provide solutions for specific cases. However, at times, specific cases highlight the principled need for an amendment. Since, as outlined above, clarifying the term “incapacitation” is a matter of principle, a specific case being the motivation for the legislative step is legitimate.

Where are we now? The Court issued an injunction on the law’s applicability status. This means the court rejected the petitions to repeal the amendment but charged the state with justifying why the law’s applicability should not be deferred to the next Knesset. The MKs who passed the amendment deliberately chose not to defer applicability to next Knesset, one of the reasons being its nature as a clarification of the existing law. The significance of “Bagatz” accepting the petition, if it does, will be dramatic in two ways:

  1. It will thus implicitly grant the AG the authority to impeach PM Netanyahu – an unparalleled state of affairs in any democratic state, and with good reason.
  2. It will thus have interfered in a basic law, and such a decision would spell the end of the judicial system practiced in Israel since Aharon Barak’s constitutional revolution that established basic laws’ status as comparable to a constitution, thereby granting the Supreme Court the authority to repeal “regular” laws. But that’s a subject for a whole new post.

By: Aharon Garber.

Further Reading:

  1. HCJ 2412/23 (The Movement for Quality Government in Israel, MK Oded Forer) decision to issue injunction on 6.8.2023

https://supreme.court.gov.il/Pages/SearchJudgments.aspx?&OpenYearDate=2023&CaseNumber=2412&DateType=1&SearchPeriod=8&COpenDate=null&CEndDate=null&freeText=null&Importance=null

  • All relevant material in The National Legislative Database-

https://main.knesset.gov.il/Activity/Legislation/Laws/Pages/LawBill.aspx?t=lawsuggestionssearch&lawitemid=2201424

  • YouTube video of the Supreme Court proceedings, 4.8.23:

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Published originally in the KPF legal news-sheet, “One Line Answers” (B’Mishpat Echad)

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