In the video: Justice Fogelman: The High Court is authorized to conduct judicial review of Basic Laws in an expanded panel/GPO
Prime Minister Benjamin Netanyahu submitted to the High Court of Justice on Thursday evening his objection to turning the order issued in the petition against the "Incapacitation Law" from a conditional order to an absolute order. The order states that the government has the responsibility to explain to the court why it should not accept the petition, and to expand the panel of judges in the petition from three to 11.
In response, drafted by attorney Michael Rabilo, Netanyahu argued that the petition, which would determine that the entry into force of the Christianity Law should be postponed starting in the next Knesset, should not be accepted. He attacked the petitioners, who, he claimed, were trying to interfere in the election results and undermine them. "With all due respect to the petitioners, in the State of Israel Plato's elite rule was not accepted, and the voice of each of the voters of the coalition factions is equal to the vote of any other citizen," it said.
On appeal, Netanyahu rejected Attorney General Gali Baharav Miara's claim that the amendment should not be made through basic legislation, but rather regular legislation. "Abuse of the constituent authority is not applicable in our case, inter alia, because judicial review of a Basic Law is not possible where there is no constitutional violation," the appeal argued.
Benjamin Netanyahu at the Cabinet meeting September 10, 2023/Flash 90, Haim Goldberg
When the order was issued in August, the Movement for Quality Government, one of the petitioners against the amendment, responded to the decision: "Unfortunately, over the past year, personal legislation has become a permanent procedure in the Knesset, which time after time changes and amends Basic Laws in order to suit the momentary needs of criminal defendants and convicted criminals. We welcome the decision of the honorable court, which is trying with its meager strength to preserve the rules of the democratic game in Israel, while preserving the dignity of the Knesset, which has long since failed to preserve its own dignity."
Yisrael Beiteinu Chairman Avigdor Lieberman, whose party members are among the petitioners, congratulated: "The Incapacitation Law is a personal law that should be disqualified or at least applied only from the next Knesset. Netanyahu's insistence on immediate application, along with the haste with which the law was enacted, make it clear to anyone who doubted that this was a law tailored to Netanyahu's needs and dimensions. I hope that the Supreme Court, in the expanded panel that was established, will finally accept our petition and prevent the transformation of the Basic Laws into plasticine engineered according to Netanyahu's personal needs."
On the other hand, Knesset Speaker Amir Ohana responded to the justices, writing on X (formerly Twitter): "As head of the legislative and constituent authority (authorized to establish Basic Laws), my consistent position, like that of all previous Knesset Speakers (when they served in office), is that the judiciary does not have the authority to discuss the validity, applicability and content of the Basic Laws. This is the exclusive authority of the Knesset, which includes the elected representatives of the entire Israeli public, who will answer to it and ask for its confidence every election. Therefore, in the absence of any authorization in law, and for the sake of democracy, the court must respect the decisions of the Knesset."
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