The Supreme Court Hearing on the Incapacitation Law
The term "incapacitation" refers to a situation in which a government official is unable to perform their duty. According to the recent amendment to the Basic Law: The Government, it is the prime minister him or herself—with ratification by two-thirds of the members of the Knesset House Committee or by a decision voted for by three-quarters of the members of the government—who can announce their own incapacitation. It also allows for an incapacitation initiative to be called by the government—without the Prime Minister—upon the request of a three-fifths of government ministers, followed by a vote of the Knesset House Committee. The amendment also does away with the situations of inability to function that were previously recognized in case law, and particularly, “legal incapacitation.” On September 28, the Supreme Court, sitting as the High Court of Justice with an expanded panel of 11 justices, will hear petitions focusing on the question of whether to defer the time at which this amendment will take effect.
Photo by Yonatan Sindel/Flash90
On August 3, 2023, Supreme Court justices, headed by Supreme Court President Esther Hayut, Deputy President Vogelman, and Justice Yitzhak Amit, heard a petition submitted by the Movement for Quality Government in Israel and other organizations opposing the amendment to the Basic Law: The Government relating to incapacitation of the prime minister. An additional petition was subsequently submitted by Yisrael Beitenu party. A hearing with an expanded panel of 11 justices will be held on September 28, 2023, focusing on the question of whether the application of this amendment should be deferred to a later time.
On March 23, 2023, the Knesset passed an amendment to the Basic Law: The Government which added sections relating to the incapacitation of a sitting prime minister. According to this amendment, the grounds for incapacitation are limited to physical or mental ill health only. That is, the amendment does away with the other cases of inability to function that were previously recognized in case law, and in particular, it cancels “legal incapacitation,” referring to a situation in which a prime minister is unable to function properly due to criminal proceedings against him or her.
The amendment further states that that the person authorized to declare incapacitation is not the attorney general (as previously determined in case law), but the prime minister themselves, with ratification by two-thirds of the members of the Knesset House Committee or backed by a decision voted for by three-quarters of the members of the government. Such a decision is valid for three days, after which it is to be submitted to the Knesset House Committee for ratification, requiring a majority of two-thirds, and would then be valid for up to one week. Extension of incapacitation beyond this period would require a Knesset plenum vote passed by a majority of 80 Knesset members.
The amendment also provides mechanisms whereby the government can initiate a declaration of incapacitation (convening the government to discuss a declaration of incapacitation of the prime minister requires a request submitted by three-fifths of the government ministers), and for the use of a medical opinion by the Knesset House Committee regarding incapacitation on health grounds.
Due to the claim that this amendment involves the Knesset making improper use of its legislative powers, as the coalition allegedly passed the amendment only for the personal benefit of the current prime minister, the Supreme Court hearing on September 28 will focus on the question of whether the amendment should be interpreted as being valid only in the future, seemingly from the next Knesset, and should not take effect immediately.
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 petitions 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 petitions 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.
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 is intended to rest with the attorney general.”[3]
Click here for more information about the Incapacitation Law.