Do the justices' reasons for rejecting the Tiberias Law lay the groundwork for rejecting the law of incapacitation? The security agenda diverted public attention from two laws that were discussed by the High Court of Justice and are awaiting a ruling: the incapacitation law and the grounds of reasonableness, but the reasons for the ruling regarding the Tiberias Law sent to Knesset members this evening raise questions about the possibility that the High Court of Justice will soon announce the rejection of another Knesset law: the Incapacitation Law, which could determine Prime Minister Netanyahu's political future.
The Incapacitation Law Approved in First Reading // Knesset Channel
"I saw special importance in presenting you with a summary of the reasoning," wrote the Knesset's legal advisor, attorney Sagit Afik, in a letter obtained by Israel Hayom containing a summary of the ruling's reasoning.
Knesset Attorney General vs. Government Attorney General
Afik has expressed her opinion in the past about the High Court's intervention in the law of incapacitation, opposing it, and in her opinion it is even preferable to the legal situation that preceded it. She also opposes the High Court's proposal to reject the application of the law: "The purpose of the law must be examined, not the arguments for its motives," and that it is similar to other incapacitation arrangements such as that of the president of the state.
In her letter to the MKs, the Knesset Attorney General noted the reason for presenting the reasoning to them, saying, "Two of the questions at the center of the ruling: the discussion on the status of a law enacted for personal motives and the discussion on the legal status of the Declaration of Independence, are important to the work of the Knesset, and will probably also be significant in the rulings that are supposed to be handed down soon in petitions regarding an amendment to Basic Law: The Government, regarding the declaration of incapacitation of a prime minister and petitions regarding an amendment to the Basic Law: Judiciary, regarding judicial review on the grounds of reasonableness of the decisions of the government and its ministers."
On the issue of incapacitation there is no middle ground// interpretation
Knesset members who read the letter told Israel Hayom that the reasons for rejecting the Tiberias Law, which was intended to pave the way for Boaz Yosef's term as mayor, and deal with personal legislation, "present the basis for disqualifying the incapacitation law on similar grounds, since it was also amended due to Netanyahu's specific situation and was intended to provide a response to petitions against his continued tenure."
Attorney General of the Knesset, Adv. Sagit Afik, Photo: Oren Ben Hakon
In the reasoning appear those of Justice Fogelman, who wrote the majority opinion, alongside the reasoning of the justices in the minority opinion: Solberg, Willner, Mintz and Stein (single opinion).
Changing the rules of the game
The majority opinion states that the law in question (Tiberias) constitutes a change in the rules of the game during the game, alongside a personal matter learned from statements made by Knesset members who called the law together with the media "Tiberias Law", as well as that factually the law was supposed to apply only to this city.
The majority justices ruled that it is impossible to close one's eyes when Knesset members openly clarify their political motives. Solberg, the minority judge for reasoning, notes that there is no need for a personal argument, because changing the rules of the game during the game in any case gives the possibility of postponement.
In the coming weeks and until mid-January, retiring Supreme Court President Esther Hayut is expected to present the ruling of the Incapacitation Law in the face of Attorney General Gali Baharav-Miara's demand to invalidate the law because it prevents her from acting in what she claims is her authority to disqualify the prime minister.
Prime Minister Netanyahu with Supreme Court President Esther Hayut, photo: Oren Ben Hakon
It was also argued on its behalf that the law enacted by the Knesset was intended personally to respond to petitions against Netanyahu's tenure. It should be recalled that Attorney Aner Hellman of the Attorney General's Office said in a hearing on the Incapacitation Law that "the Attorney General never had the authority to declare a prime minister incapacitated," but after a short time he retracted and left the possibility to exist.
In addition, according to Knesset members who were exposed to the arguments of the Tiberias Law, "The justices planted the seeds for the incapacitation ruling in order to create a precedent. The options before us in the High Court ruling are: either late application of the Incapacitation Law to the next Knesset or amendment of the law. One way or another, it seems that the amendment will not apply to Netanyahu's term."
Against the background of the resumption of hearings in Netanyahu's trial during the war, the question of incapacitation may soon return to the attorney general's desk, and the fate of the incapacitation law is more relevant than ever.
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