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A Divided Supreme Court Confronts Netanyahu’s Disputed Recusal Law

Protest Tel Aviv Netanyahu
A banner reads "No forgiveness" at street protest in Tel Aviv. Photo by Oren Alon

An enlarged panel of the Supreme Court, composed of 11 justices and for the last time presided by Chief Justice Esther Hayut before her retirement in two weeks, deliberated this week over the petitions against the controversial “Recusal Law.”

This contested legislation is an amendment to the Basic Law: The Government and it mandates the necessity of a supermajority in both the government and in a Knesset committee to recuse a prime minister from his position. It was hastily enacted in March in order to shield Prime Minister Benjamin Netanyahu from potential recusal by the Attorney General. The legislation was initiated despite assurances from the Attorney General, both then and now, that there was and is no intention to initiate recusal proceedings against Prime Minister Netanyahu.

Netanyahu was apprehensive that his engagement in the judicial coup, which is in violation of his legal obligations to avoid conflict of interest with his ongoing criminal trial, would warrant legitimate grounds for his removal from office. This disputed amendment stipulates that a prime minister can only be recused for health or mental incapacity and solely through a process initiated by the prime minister or the government.

Immediately following the amendment’s passage, Netanyahu proclaimed that his hands “were previously tied” but that he is now taking action: “I am stepping in.”

Several justices pointed to this declaration as substantial evidence that the Recusal Law was a strategic remedy tailored to Netanyahu’s legal predicaments rather than a genuine constitutional amendment.

Historically, the Israeli Supreme Court has never invalidated a Basic Law or its amendment. However, petitioners have urged the court to repeal the law, claiming it represents a misuse of constitutional power by Netanyahu’s coalition. In an unconventional but increasingly common move, the Attorney General has sided with the petitioners against the Prime Minister. In preliminary hearings, the court has decided not to annul the law but to contemplate delaying its implementation until after the next general election.

During oral arguments, Netanyahu’s counsel stated that the Prime Minister asserts that the Supreme Court lacks authority to meddle with Basic Laws or to defer their enactment because such actions would be undemocratic and intrusive to the electorate’s will.

Analysis of the justices’ remarks during the proceedings suggests that a narrow majority — six liberal justices as opposed to five conservative justices — may favor postponing the amendment.

Even if the enactment of the Recusal Law is deferred, Netanyahu could still deem this a triumph, having garnered another affirmation from the Attorney General that recusal is improbable despite his violation of legal obligations. This means his position remains stable and he won’t be penalized for breaching his obligation to refrain from conflicted engagement in the weakening of the judicial system, allowing him to further pursue the judicial coup.

The final ruling is anticipated by mid-January at the latest.


Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.


April 28, 2024

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