Explainer: Israel's High Court of Justice and the Incapacitation Law
The term "incapacitation" refers to a situation in which a government official is unable to perform their duty. The previous version of the law did not detail what constitutes incapacitation, nor did it determine who is authorized to declare incapacitation. The current version is accused of being personal and political. This explainer sets forth a detailed explanation of this issue.
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What is “incapacitation” in this context?
The term refers to a situation in which a government official is unable to perform their duties. Incapacitation can be temporary or permanent.
Regarding incapacitation, the previous version of the Basic Law: The Government stated that:
Should the prime minister be temporarily unable to perform his duties, his position shall be filled by the acting prime minister. After the passage of 100 consecutive days on which the acting prime minister served in the place of the prime minister, and they did not return to perform his duties, they shall be considered to be unable to perform their duties on a permanent basis.
The law did not detail what constitutes incapacitation, who gets to define a state of incapacitation, and whether there are set grounds on the basis of which such a decision can be made.
The question of incapacitation of a prime minister first arose with regard to Ariel Sharon in 2006. In that instance, the attorney general, in concert with the cabinet secretary and relevant medical staff, decided that the prime minister was unable to fulfill his duties, and thus his responsibilities were transferred to the acting prime minister, Ehud Olmert. This event clearly shows that a health situation that prevents the prime minister from functioning is a classic case of incapacitation.
However, the Court has ruled in several cases that there can also be other grounds for incapacitation. For example, in response to a petition that sought to force the attorney general to declare Ehud Olmert incapacitated while he was under police investigation, the court ruled that:
If it subsequently becomes clear that the functioning of the prime minister does not allow the criminal investigations to be carried out properly, then there may be room for the attorney general to declare temporary incapacitation of the prime minister.[1]
While the petition was rejected, the ruling shows that the Court assumes that cases of criminal investigation can justify, in rare and unusual circumstances, a declaration of incapacitation—for example, when the prime minister’s conduct makes it difficult for a proper investigation to take place.
In 2021, the High Court rejected a petition to instruct Attorney General Mandelblit to declare Netanyahu to be incapacitated. Mandelblit’s position was that the petition should be rejected even if “it cannot be ruled out that in exceptional circumstances there may be grounds for functional incapacitation due to the criminal indictment against the prime minister.” The Court, which rejected the petition, noted that the prime minister was obliged to set up a conflict-of-interest arrangement.
An interesting question is that of who is authorized to declare the prime minister to be incapacitated—the attorney general, the government, or perhaps a medical team in the case of medical incapacitation? The previous version of the law had nothing to say on this matter.
In the above-mentioned petition regarding the incapacitation of Ehud Olmert, the Court stated that, “we assume, without making a ruling on this issue, that in appropriate circumstances the attorney general is authorized to declare temporary incapacitation of the prime minister.”
Similarly, in a 2021 case regarding the incapacitation of Prime Minister Netanyahu, the court ruled that “no grounds have arisen for the Court to intervene in the attorney general’s decision that at this stage; there is no established reason why the respondent should be unable to perform his duties.” Thus, the court did not challenge the attorney general’s right to make this determination. However, in a comment in the case of a petition regarding Prime Minister Netanyahu’s conflict of interests,[2] Justice Meltzer explicitly stated that “such a declaration of incapacitation … is solely in the hands of the attorney general.”
Again, in a hearing on determining the permanent incapacitation of Ariel Sharon, the Court stated that “the Basic Law did not set down the mechanism by which it is decided whether the prime minister is permanently incapacitated from performing his duties. Therefore, it can be assumed that this authority rests with the attorney general.”[3]
- According to the amendment to the Basic Law: The Government, the grounds for incapacitation to be declared are solely those of physical or mental ill health leaving the incumbent unable to fulfill their duties. Thus, the amendment rules out other situations of inability to function that have been recognized in case law, and in particular, removes “legal incapacitation,” such as when a prime minister is unable to function due to criminal proceedings against them.
- The amendment explicitly defines that the decision to declare incapacitation, instead of being made by the attorney general (as case law previously ruled), should be made by the prime minister themselves, with ratification by two-thirds of the members of the Knesset House Committee, or by a vote of three-quarters of the government. This decision will be valid for three days and will then be submitted for ratification to the Knesset House Committee, with a two-thirds majority required, after which it will be valid for a week. Extending incapacitation further will require a vote in the Knesset carried by a majority of 80 Knesset members.
- The amendment also defines mechanisms whereby the government can initiate a declaration of incapacitation (requiring a request from three-fifths of the government ministers for the government to be convened to discuss a declaration of incapacitation), and the use of a medical opinion before the Knesset House Committee regarding incapacitation for health reasons.
First, it should be noted that this is an amendment to a basic law. Therefore, any critique is made with particular caution, since it forms part of Israel’s developing constitution. The High Court of Justice has never struck down a basic law, though in several cases it has issued a “notification of cancellation” when the Knesset has “misused” its constituent power. It should be remembered that the Knesset can amend basic laws with great ease (with a regular majority of 61 Knesset members in the case of the Basic Law: The Government), in a rapid procedure—as in this case, when the amendment became law merely one month after it was first raised in the Knesset.
In accordance with the rulings of the Supreme Court, determining that the Knesset has “misused the constituent power” requires a two-stage assessment.
In the first stage, “identification,” it must be proven that the norm that has been included in the basic law is not a suitable subject for the constitution, in terms of its attributes, form, and characteristics. There are three tests applied in order to identify the constitutional norm in question:
- The stability test, examining whether the norm is temporary in nature, applying for a pre-defined period of time, or whether it is a stable, permanent arrangement, looking toward the future.
- The generality test, assessing whether the norm is of general/structural application, or whether it has personalized characteristics.
- The constitutional fabric test, looking at whether the norm is aligned with the character of the subjects regulated in other basic laws or in the basic law to which the amendment is being made.
In the second stage, if the Court rules that the amendment to a basic law does not meet these identification criteria, then there is still room to assess whether there is special justification for using an amendment to a basic law to legislate the norm in question.[4]
Regarding the current amendment to the basic law, as noted in the criticism voiced during the passing of the amendment and as pointed out by the attorney general in her legal opinion regarding the petition against it, the main problem is the law’s personal nature.
It appears that the timing of the bill, and what was explicitly stated on record during the discussions of the bill, demonstrate that the amendment is designed for the benefit of Prime Minister Benjamin Netanyahu. It was created due to concerns that the attorney general might declare him to be incapacitated and was intended to prevent such an outcome. This is a blatant case of a law being passed for the benefit of a particular individual in particular circumstances. As was clearly noted in the attorney general’s legal position, the law was passed (on March 23) three days before the deadline for responding to a petition demanding that the attorney general declare Netanyahu’s incapacitation.
This would therefore appear to be an instance of misuse of the Knesset’s legislative powers—passing legislation not for general purposes but for political purposes in order to benefit the legal situation of a specific individual. In her legal opinion, the attorney general also details the events that occurred following the passing of the amendment, when the prime minister declared that he was “getting involved” in the judicial reform, or in other words, was blatantly contravening the conflict-of-interest arrangement, against the explicit instructions of the attorney general. Taken at face value, the entire goal of the amendment was to release the prime minister from his obligation to the conflict-of-interest arrangement, and to dissipate concerns that the attorney general might declare him to be incapacitated. This further substantiates the claim that the amendment was personal. Thus, the attorney general stated in her response to the petition that a “boundary had been crossed” in this case regarding the misuse of a basic law, justifying its revocation.
We should emphasize that the wording of the amendment itself also raises a number of problems, as it may create situations in which a prime minister is unable to function and the government refuses to declare them as incapacitated. The fact that a complicated mechanism is required, involving a majority in the government followed by a large majority in the Knesset House Committee (keeping in mind that the opposition can choose to oppose such a motion, for its own reasons), may leave the state without an authorized acting prime minister, for a period of days or even weeks.
On August 3, 2023, a discussion was held with a panel of three judges regarding appeals against the law. The likelihood that such a panel would declare, for the first time in history, the nullification of a Basic Law was low due to the fact that in normal times, the annulment of regular laws (not Basic Laws) is usually done by larger panels, and in the majority of cases where regular laws were annulled, it was decided by a panel of at least nine judges. The court did decide to expand the panel and scheduled a discussion with a panel of 11 judges on September 27, 2023. The court issued a conditional decree requiring respondents to explain why the enactment of the law should not be postponed.
It can be inferred from this that, as long as it has a majority, the intention of the court is not to cancel the law, but to deliberate on the possibility of postponing its enactment. Due to the personal nature and immediate enactment of the amendment, the court may take an interpretative approach. This means it will choose an “enabling” interpretation of the law and avoid the need to declare its nullification by deciding that it will take effect from the next Knesset session. A similar course of action was taken (in deliberation over a regular law) recently in the case involving "Tiberias 5 Law," which also had clear personal aspects and immediate enactment. The court did not annul the law but decided that it would only apply to the next local elections system, thus avoiding its personal flaw.
Footnotes
[1] HCJ 6231/08 Yitzhak v. the Prime Minister (August 4, 2008)
[2] HCJ 3056/20 Movement for Quality Government in Israel v. the Attorney General, March 25, 2021
[3] HCJ 396/06 Yossi Fuchs v. the Attorney General, January 31, 2006
[4] HCJ 4928/10 MK Roni Bar-On v. the Knesset, April 7, 2011; HCJ 8260/16 Academic Center of Law and Business v. the Knesset, September 6, 207; HCJ 5969/20 Shafir v. the Knesset, May 23, 2021.