In the "race" that took place here in the shadow of the terrible war between the court and the political system, the former won big. Many will say, "Another victory like this and we lost," but the reality cannot be denied. Even before the politicians recovered from the ruling that struck down the Basic Law and abolished the grounds of reasonableness, the anger of the ruling on incapacitation had already jumped.
The Incapacitation Law Approved in First Reading (Archive) // Knesset Channel
The majority justices decisively ruled that the amendment to Basic Law: The Government is a clearly personal law, intended for the needs of Prime Minister Netanyahu, who is accused of criminal offenses. In this case, they did not have to make much effort. The statements made by the MKs during the Knesset debate on the amendment, as well as its timing, clearly indicated this.
Some of the minority justices rightly pointed out that in the past amendments to the law were not invalidated despite their being clearly personal. A careful and systematic examination of all of these amendments, including those made in Basic Laws, would have greatly undermined the justice of some of the arguments that the majority justices enlisted to support the invalidation of the current law.
Despite all this, in its ruling last night, the court – this time with a smaller panel of 11 of its 15 judges – acted with some caution. Despite the unequivocal ruling of the majority justices that the content of the law is invalid, they did not rush to declare it void, but made do with postponing its application until the next term. This was also the case a few months ago, when they rejected the application of the amendment that sought to give an advantage to the chairman of the committee called in Tiberias.
President Hayut at the hearing (archive), photo: AP
The court also exercised great restraint and proper wisdom when it chose to focus in advance, already at the stage of issuing the conditional order, only on the personal nature of the amendment, and emphasized that it deliberately avoided addressing the question of the existence of grounds for declaring the incompetence of the incumbent prime minister or Netanyahu's conflict of interest arrangement and methods of enforcing it. In so doing, the court pushed the dispute to the legal realm and avoided going beyond what was necessary into the waters of the quagmire.
However, "along the way" the majority justices did not refrain from establishing a fact and making use of the legal doctrine of "abuse of constituent authority," which is likely to bear additional fruits of invalidating Basic Laws in the future as well. The strong opposition of the minority justices to its use was to no avail.
By asserting its independence, the court proved that attempts to influence its judgment – such as by leaking the contents of the draft reasonableness ruling – would not succeed. The attempt to enact snap legislation in the Knesset that would "sandal" him and prevent the publication of his ruling also failed. By also using the element of surprise, in issuing the ruling on incapacitation yesterday, earlier than expected (in about ten days, when the two judges retired), he helped the court achieve its job.
Diversified Court
Much criticism was leveled at the relative haste of the court's procedural conduct. Nonetheless, the last two rulings show that its judges are determined to maintain their independence and independence.
Refrained from addressing the question of the existence of grounds for declaring Netanyahu incapacitated, photo: Oren Ben Hakon
The variety of arguments given by each of the 15 justices of the Supreme Court, and the distribution of opinions (on the question of the power to invalidate Basic Laws – 12 against 3, on the secondary question of whether to specifically invalidate the amendment on the grounds of reasonableness – 8 against 7, and on the disqualification of the Incapacitation Law – 6 against 5) show that despite the criticism, the composition of the Court is quite diverse. Maybe not enough, but varied. Unlike in the past, he no longer heard a uniform solo vocal, of "We are all unanimous", but rather shades and shades.
The distribution of their positions shows that even after Hayut and Baron's retirement, the picture will not change. In yesterday's ruling, only 11 judges sat on the panel, but among the four judges who did not take part in it – and will continue to serve on the court – the division between judges who disapprove of disqualifying a Basic Law (Elron and Kasher) and those who support it (Kabob and Ronen) is maintained.
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