Last night's hearing in the High Court of Justice on the law of incapacitation highlighted an unprecedented aspect, as befits the times. For the first time, the Attorney General of the Knesset and the Attorney General expressed completely opposite opinions, literally 180 degrees. While Attorney General Gali Bahar-Miara expressed her opinion that the Basic Law should be completely invalidated, a position that the justices have already rejected, Knesset Attorney General Sagit Afik argued that not only should it not be invalidated, but that it is even better than the previous arrangement.
Legal Advisor to the Knesset, Sagit Afek, Photo: Oren Ben Hakon
The closest event to this was in the High Court of Justice regarding the Regulation Law. Then-Knesset Attorney General Eyal Yinon defended the law, while Attorney General Avichai Mandelblit said it should be disqualified. But there, too, Mandelblit agreed with the purpose of the law and proposed a last, less harmful solution, in his opinion, of "market regulation."
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"Theorem is not mathematics," it is said. Nonetheless, professionals, and certainly those who have all grown up in the legal bed in the civil service, are expected to have a modicum of common ground. The incompetence of the prime minister is an issue at the heart of democracy and the governing arrangements of the state. The polar positions of the two raise questions about the so-called "rule of law," which turns out to be material in the creator's hand. The obvious conclusion, then, is that "someone here exaggerated." Beyond the substantive issue that the justices will decide, on the sidelines, and perhaps not on the margins, they will also decide which of the two erred in judgment.
The debate on the law of incapacitation, photo: Reuven Castro/Walla!
In addition, during the hearing, the petitioner, Adv. Eliad Shraga, made a far-reaching argument: The entry into force of the law should be postponed as long as Netanyahu is in power. This position justifiably criticizes the order issued by the High Court of Justice, according to which the parties must express their opinion on why the entry into force of the law should not be postponed. The assumption is that a postponement will lead to the elimination of the personal defect that fell into the law. In other words, if the law was enacted for Netanyahu's private needs, postponing its entry into force would legitimize it.
Adv. Eliad Shraga at the beginning of the hearing on the grounds of reasonableness, photo: Olivier Fitoussi
Postponement to what date? In the event that the postponement is to the next Knesset, personality may continue to exist. If Netanyahu is re-elected and his criminal trial does not come to an end, the conditions will remain the same. On the other hand, Shraga's proposal for a ruling that would suspend the law as long as Netanyahu is in office is itself lacking in personality, and even Attorney General Bahar-Miara opposes it. President Esther Hayut's desire to choose a middle ground, between rejecting the petitions or disqualifying the law, does not stand. The judges must decide: the Attorney General of the Knesset or the Attorney General of the Government.
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