Knesset Legal Advisor Adv. Sagit Afek today conveyed her position to the High Court of Justice on the issue of petitions demanding the cancellation of the amendment to the Basic Law of the Government known as the "Incapacitation Law."
Afek spoke out against the Attorney General, who asked to invalidate the amendment, writing: "The precedents of the Attorney General's position cannot be overstated, in two aspects. First, the honorable court has never declared a Basic Law null and void, and the Attorney General asks the court to do so for the first time, and second, a situation in which the Attorney General asks the honorable court to declare a law null and void is a rare event, and a situation in which the Attorney General asks the honorable court to declare the nullity of a Basic Law is an event that never happened.
Although this is an amendment to the Basic Law, the Attorney General wrote that Israel has already adopted the doctrine of "abuse of constituent authority," which allows the High Court of Justice to intervene in Basic Laws, inter alia, if they are personal or enacted for clearly political purposes.
In the attorney general's position to invalidate the law, she quoted Supreme Court President Esther Hayut, who wrote in the recent Deri ruling on the Deri Law, which is also an amendment to the Basic Law, that "it is hard not to see the amendment of the Basic Law as a culmination, or rather a low point, of this worrying phenomenon... According to it, Knesset members take advantage of the ease with which the Basic Laws can be amended for specific political purposes. In so doing, they cause erosion and dangerous disregard for the status of the Basic Laws, which are intended to be glorious chapters in the project of the Israeli constitution.'"
Regarding the incapacitation law, the attorney general wrote that "we are interested in a particularly extreme case of the phenomenon discussed by the Honorable President Hayut," adding that "the application of the tests of the doctrine of abuse of authority, as developed in case law, indicates that the line has been crossed and the Knesset's constituent authority has been clearly abused."
"Netanyahu violated the arrangement"
The attorney general wrote in her position that the incapacitation law was intended to help the personal situation of the prime minister accused of criminal offenses in order to defy a court ruling that allowed him to serve as prime minister under indictment on condition that he comply with the conflict of interest arrangement – an arrangement that the attorney general said Netanyahu violated.
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