Prime Minister Benjamin Netanyahu’s lawyer argued in the High Court of Justice on Thursday that a law preventing the court or the attorney general from ordering a prime minister to step down was a necessary safeguard of democracy and the right to vote. The law, which was passed in March as part of the coalition agreement between Netanyahu and his former rival Benny Gantz, has been challenged by several petitions claiming that it was tailored to protect Netanyahu from legal consequences of his corruption trial.
Recusal law aims to uphold democratic principle, lawyer says
Michael Rabilo, Netanyahu’s legal counsel, said in his response to the petitions that the recusal law was meant to uphold the democratic principle that only the voters can decide who leads the country. He quoted Abraham Lincoln’s famous speech at Gettysburg, where the US president said that democracy is “government of the people, by the people, for the people”. Rabilo argued that any recusal ordered by the court or the attorney general would violate this principle and do “mortal harm” to the right to vote.
Rabilo also claimed that the court has no authority to intervene in the legislation because it is an amendment to one of Israel’s quasi-constitutional Basic Laws, which he said can only be reviewed by the Knesset. He said that the court has never struck down a Basic Law before and should not do so now. He added that the recusal law does not infringe on any fundamental rights or values and does not contradict any other Basic Law.
Petitioners say recusal law is personal and unconstitutional
The petitioners against the recusal law, which include several opposition parties, civil society groups and former justice officials, have argued that the law is personal and unconstitutional. They say that the law was designed to allow Netanyahu to violate a conflict of interest agreement he signed in 2020 under the auspices of the High Court, which barred him from interfering in certain matters related to his trial, such as judicial appointments and law enforcement.
The petitioners contend that the personal nature of the recusal law amounts to the “misuse of constituent authority” by the Knesset, one of two doctrines that the court has asserted in the past can be used to strike down a Basic Law. They also claim that the recusal law undermines the rule of law, the separation of powers and the independence of the judiciary. They say that the court has the duty and the power to review any legislation, even a Basic Law, and to ensure that it conforms to Israel’s constitutional order.
High Court to hold hearing on recusal law later this month
The High Court is expected to hold a hearing on the recusal law before an 11-justice panel on September 28. The court has already held a preliminary hearing on August 3, where it heard arguments from both sides and asked several questions. The court also asked Attorney General Gali Baharav-Miara to submit her opinion on the matter, after she refused to defend the government’s position and decided to argue against it.
Baharav-Miara has said that she opposes the recusal law because it is inconsistent with Israel’s constitutional system and poses a serious threat to public trust in state institutions. She has also said that she reserves the right to order Netanyahu to recuse himself if he breaches his conflict of interest agreement or if there is a change in circumstances that requires such a step.
The recusal law is one of several controversial pieces of legislation that were passed by the previous coalition as part of its power-sharing deal. Another law, known as the reasonableness law, grants immunity from prosecution to any member of parliament who votes in accordance with their coalition agreement. The High Court has also heard petitions against this law earlier this month and is expected to issue its ruling soon.
