Prime Minister Netanyahu (right) and Supreme Court President Hayut (left)
Prime Minister Netanyahu (right) and Supreme Court President Hayut (left)Flash 90

The Supreme Court on Thursday morning formed a three-judge panel on the petitions to cancel the amendment to the Basic Law, which states that a Prime Minister minister can be declared unable to serve only in a state of physical or mental incapacity.

The petitions were submitted by the Movement for the Quality of Government and the Yisrael Beytenu party.

The hearing was opened by the lawyer Eliad Shraga, the chairman of the movement, who claimed that "Defendant number 2 (Prime Minister Netanyahu) decided to carry out a governmental coup in the State of Israel. He decided to crush the judiciary, he decided to dismantle the rule of the law enforcement system, he decided to dismantle the institution of the Attorney General, he decided to dismantle the prosecutor's office, the police - all the gatekeepers. From the Governor of the Bank of Israel to the Chairman of the Government Companies Authority and turn us into a borderline dictatorial state."

Shraga continued: "Here is an entirely personal event, and the words were clearly said on the record. Just a few hours after the law was passed, Netanyahu already gave a speech and declared that from now on the conflict of interest arrangement does not apply to him, and began to involve himself in the matter of the Supreme Court."

Supreme Court President Ester Hayut wondered why Shraga focused mainly on describing a situation and not on legal arguments. "Sir, do you also want to make a legal argument, or continue to tell about our dire state of affairs?" said Hayut.

Justice Uzi Vogelman said that "the Supreme Court is authorized to conduct judicial review of Basic Laws in an expanded composition."

Attorney Haberman, who represents the Yisrael Beytenu party, said: "We have recently witnessed frequent amendments to the Basic Laws that have become personal. It's not like we're facing a slippery slope, we're going down the slope."

Justice Hayut said that "if there are things that need to be improved, this is not a reason to cancel a Basic Law. It must be connected to the doctrine of extreme remedies for the canceling of a Basic Law."

The Attorney General gave a legal opinion that the law should be invalidated on the grounds that it was intended to improve the legal status of Prime Minister Netanyahu and allow him to avoid respecting the conflict of interest settlement.

The opinion states that "An examination of the totality of the circumstances relating to the enactment of Amendment No. 12 to the Basic Law showed that our concern is a constitutional amendment fundamentally flawed and in its outcome, which is the product of the abuse of the Knesset's constituent authority, in an accelerated legislative process, in order to improve its situation the Prime Minister's personal legal rights and allow him to act contrary to the ruling of the court."

"There is a place for issuing a conditional decree ordering the Knesset and the Prime Minister to come and present why not to cancel Amendment No. 12 due to abuse of the constituent authority. Finally, it should be ordered that the conditional decree be turned into an absolute decree."

Attorney Aner Hellman, who represented the Attorney General at the hearing, said that "the constituent authority (the constitutional authority of the Knesset) has become a resource for solving personal problems and the criminal trial of a prime minister. After the Deri amendment, we see an even more extreme case in terms of personal [legislation]. A pattern of action that undermines the rule of law in the State of Israel."

According to him, "In the 25th Knesset, two basic personnel amendments were enacted. This is becoming a pattern, and it needs to be stopped. We are in an extreme case of abuse of the constituent authority. The Supreme Court needs to stop the drift that we have been seeing in recent months."

Prime Minister Benjamin Netanyahu's representative, lawyer Michael Rabillo, said at the hearing: "If the court annuls a basic law, it cuts the branch on which it sits."

Attorney Michael Rabello, who represents Prime Minister Netanyahu, said at the hearing: "If the court annuls a Basic Law, it cuts the branch on which it sits."

Judge Yitzhak Amit asked Rabello: "If a sewage tax is defined as a Basic Law - according to your opinion, our hands are tied from dealing with it because it is a Basic Law?" Rabello replied: "Yes."

The representatives of the Knesset and the Prime Minister asked to reject the petitions and claimed that the Supreme Court has no authority to interfere in the enactment of a Basic Law.

So far, the Supreme Court has not yet decided whether it has the authority to intervene in fundamental legislation and annul it.

In the meantime, it was announced Wednesday night that the government is considering a move to file a motion to disqualify Supreme Court President Esther Hayut from discussing the reasonableness standard.

The government's reasoning for the move is a scathing opinion that Hayut submitted against the law in a public speech last January. In her speech, Hayut explained why this is a dangerous change and even spoke against the motives behind the legislation.