In a significant legal setback for the government, the High Court of Justice voted six to five on Wednesday to delay the enforcement of a contentious law that shielded Prime Minister Benjamin Netanyahu from potential orders to recuse himself from office. The court deemed the legislation, designed to personally benefit the prime minister, as improper and ruled that it would take effect only at the commencement of the next Knesset term, following the upcoming general elections.
House Bill 4758, an amendment to Basic Law: The Government passed in March, faced criticism for its apparent personal nature. The majority of judges argued that the timing and stated purpose of the recusal law were indicative of its specific design to benefit Netanyahu. This, they ruled, constituted an inappropriate use of the Knesset’s power to amend Israel’s quasi-constitutional Basic Laws.
The recusal law addressed a loophole in Basic Law: The Government, where the attorney general and the High Court might have had the authority to instruct a prime minister to step aside under specific circumstances, such as a violation of a conflict of interest agreement. The legislation granted the government and the Knesset the sole power to declare the prime minister incapacitated, solely on medical grounds.
This marks the second time in a week that the High Court has intervened in Basic Laws, a rare move given their quasi-constitutional status. The court, invoking the doctrine of the misuse of constituent power, emphasized that the Knesset should not abuse its authority to pass quasi-constitutional Basic Laws for short-term political goals.
In her ruling, Acting Supreme Court President Uzi Vogelman stressed the democratic principle that legislation should consider the interests of the general public rather than being tailored for the benefit of a specific individual. He highlighted explicit statements from coalition MKs, including Moshe Arbel, Tally Gotliv, and David Amsalem, affirming that the law aimed to benefit Netanyahu.
The court’s decision fully embraces the doctrine of misuse of constituent authority, determining that the implementation of Amendment No. 12, the recusal law, must be delayed until the next Knesset term to avoid the appearance of a highly personal amendment.
While the ruling theoretically allows petitions requesting the attorney general to instruct Netanyahu to recuse himself, it remains uncertain whether such actions will be pursued in the near future, as the government is currently not engaged in judicial overhaul legislation. The dissenting judges argued against the court’s right to review or intervene in Basic Laws and contended that the recusal law had general applicability, applying to all prime ministers.