Israel's High Court hears challenge to a law that makes it harder to remove Netanyahu from office

Israelis protest against plans by Prime Minister Benjamin Netanyahu's government to overhaul the judicial system and in support of the Supreme Court ahead of Thursday's pivotal hearing, in Jerusalem, Thursday, Sept. 28, 2023. The hearing over a law that makes it more difficult to remove Netanyahu from office deepens a rift between the government and the judiciary amid months of turmoil in Israel. (AP Photo/Ohad Zwigenberg)

JERUSALEM (AP) — Israel’s Supreme Court on Thursday heard a challenge to a law that makes it harder to remove a sitting prime minister, which critics say is designed to protect Prime Minister Benjamin Netanyahu, who has been working to reshape the justice system while he’s on trial for alleged corruption.

The hearing, which lasted eight hours, was part of several pivotal court challenges against a proposed package of legislation and government steps meant to alter the country’s justice system. It comes after months of turmoil in Israel over the plan and deepens a rift between Netanyahu’s government and the judiciary, which it wants to weaken despite unprecedented opposition.

Thursday’s hearing on the law, the second by the High Court, took place in front of an expanded 11-judge panel, underscoring the importance of the deliberations.

Netanyahu’s governing coalition — Israel’s most religious and nationalist ever — passed an amendment in March known as the “incapacitation law,” which allows a prime minister to be deemed unfit to rule only for medical or mental health reasons. Under the amendment, only the prime minister or the government has the power to determine a leader’s unfitness.

The previous version of the law was vague about both the circumstances in which a prime minister could be deemed unfit, as well as who had the authority to declare it. But experts say the amendment expressly strips the attorney general, who historically wields the power to declare a prime minister unfit for office, of the ability to do so.

Critics say the law protects Netanyahu from being deemed unfit for office over claims that he violated the conflict of interest agreement by dealing with the legal overhaul while on trial for corruption charges. They also say the law is tailor-made for Netanyahu and encourages corruption.

Thursday’s hearing focused on the question of when the law should take effect. Netanyahu’s lawyer argued that the law’s implementation shouldn’t be postponed, even though the prime minister is standing trial for corruption.

But the petitioners argued that if the law wasn’t postponed until the next parliamentary election, it would present a conflict of interest. The lawyer for Israel’s parliament, Yitzhak Bart, admitted that the amendment was motivated, at least in part, by Netanyahu’s personal dilemma. But he stressed that the court should focus on the general effect of the law, rather than the motivation behind it.

A ruling is expected by January.

“We are trying to repeal the undemocratic and unconstitutional statute which allowed an unfit and improper prime minister to remain in his position,” said Eliad Shraga, chairman of the Movement for Quality Government in Israel, a good governance group which is challenging the amendment. “They built him a kind of a golden cage so that he will be protected from justice.”

Netanyahu’s lawyer, Michael Rabello, asked the court to uphold the amendment and implement it immediately. He argued that the Supreme Court doesn’t have the authority to strike down the amendment because it’s one of Israel’s “Basic Laws” — major pieces of legislation that serve as an informal constitution, which Israel doesn’t have. The court itself has never struck down that type of legislation. Doing so would thrust Israel into uncharted territory.

Attorney General Gali Baharav-Miara has told Netanyahu he was violating a conflict of interest agreement, but hasn’t indicated that she might move toward declaring him unfit over that.

Dozens of protesters gathered outside Netanyahu’s private residence in Jerusalem before the hearing, chanting “democracy,” while his allies defended the law. Simcha Rothman, a main driver of the overhaul, told Israeli Army Radio that the court’s decision to hear the case was harmful to Israeli democracy, and challenging the law was akin to throwing out the results of a legitimate election.

“The moment the court determines the laws, then it is also the legislative branch, the judiciary and the executive branch,” he said. “This is an undemocratic reality.”

The government wants to weaken the Supreme Court and limit judicial oversight on its decisions, saying it wants to return power to elected lawmakers and away from what it sees as a liberal-leaning, interventionist justice system. The first major piece of the overhaul was passed in July and an unprecedented 15-judge panel began hearing arguments against it earlier this month.

The drive to reshape Israel’s justice system comes as Netanyahu’s trial for alleged corruption is ongoing. He’s charged with fraud, breach of trust and accepting bribes in three separate cases involving influential media moguls and wealthy associates. He denies wrongdoing, seeing the charges as part of a “witch hunt” against him orchestrated by a hostile media and a biased justice system.

Experts and legal officials say a conflict of interest arrangement struck after Netanyahu was indicted is meant to limit his involvement in judicial changes. After the incapacitation law was passed, Netanyahu said that his hands were no longer tied and that he was taking a more active role in the legal changes underway. That sparked a rebuke from Baharav-Miara, who said Netanyahu’s remarks and any further actions were “completely illegal and in conflict of interest.”

Critics say Netanyahu and his government are working to upend the country’s delicate system of checks and balances and setting Israel on a path toward autocracy. The overhaul has plunged Israel into one of its worst domestic crises, deepening longstanding societal divisions between those who want Israel to be a Western-facing liberal democracy and those who want to emphasize the country’s more conservative Jewish character.

Netanyahu has moved forward with the overhaul despite a wave of opposition from a broad swath of Israeli society. Top legal officials, leading economists and the country’s booming tech sector have all spoken out against the judicial changes.

The reforms have sparked opposition from hundreds of military reservists, who have said they won’t serve as long as the overhaul remains on the table. Tens of thousands of people have protested every Saturday for the last nine months.


Tia Goldenberg reported from Tel Aviv. Julia Frankel contributed to this report from Jerusalem.