Attorney Eliad Shraga, the chairman of the anti-judicial reform Movement for Quality Government in Israel,which submitted the petition against the Incapacitation Law, believes that the Supreme Court panel on the petition will end with an order against the implementation of the law.
The Incapacity Law is an amendment to a Basic Law passed in March 2023, which states that a Prime Minister can be declared unable to serve only in a state of physical or mental incapacity.
In an interview with Arutz Sheva - Israel National News, Shraga said that he came out of yesterday's hearing feeling "very good."
Referring to the agreement of Attorney General Gali Baharav-Miara with his position against the Incapacitation Law, Shraga pointed out that this is a precedent-creating decision on the part of the attorney general. "This is a rather unusual response and it makes me quite happy. It strengthens my petition and therefore our response, that it has joined the right side of history," said Shraga, who also refers to the position of Netanyahu's lawyer, according to which the court has no authority to annul a Basic Law, stating that "he is living in a legal reality that does not exist in the State of Israel."
According to him, "All the rulings of the last twenty years, from the Mizrahi Bank ruling through the Roni Bar-On ruling and on through the ruling regarding the academic center, the ruling in the Shapir matter and the Sheinberg matter and the Movement for the Quality of Government in the transition government, all speak of the doctrine of the authority of the Supreme Court, the doctrine of abuse of fundamental authority. This is not new. He is clinging to articles from 25 years ago. When you want to make a claim, you make a claim, but it has no basis in the legal world of 2023."
Shraga also referred to the chances of continuing the judicial reform legislation in the Knesset and stated that since the whole purpose of the legislation is not relevant in his eyes but is only intended to free certain individuals from the threat of the law, as he put it, there is no chance that they will reach any compromise which in his opinion should not be reached either. In his eyes, neither side has the motivation to reach compromises.
Basic Laws have quasi-constitutional status in Israel and are meant to become the basis for a formal constitution over time. The Supreme Court has never struck down a Basic Law before, and doing so would be nearly equivalent to the American Supreme Court striking down an amendment to the US Constitution.
The Movement for Quality Government in Israel is a left-leaning Israeli non-profit organization.which unsuccessfully petitioned the Supreme Court of Israel to bar Benjamin Netanyahu from power.in 2020. It has led protests against the judicial reform proposals. Attorney General Gali Baharav-Miara backed its petition seeking unprecedented judicial action against the Basic Law on incapacitation of a sitting prime minister and keeping the court from ordering the PM’s suspension.
Professor Alan Dershowitz weighed in on the Incapacitation Law when it was in committee, saying via zoom:
“I believe that the Supreme Court should have the last and final word on issues of minority rights, basic civil liberties and basic human rights. But on the issue that's before this committee today, I am completely in support of this legislation. I do not believe that courts—even the Supreme Court—should have any role to play whatsoever in deciding whether a duly elected Prime Minister is not competent to serve, whether the duly elected Prime Minister has an inability to serve based on medical or other reasons. Those issues should be entirely in the hands of the Knesset and the Government.
“I feel very strongly that unelected courts should not play a role in deciding whether the Prime Minister is able to serve. That is essentially a legislative decision. That is essentially a decision that should be based on the will of the people, not the will of the elite judges. The role of the court should not be extended to making essentially political decisions about whether or not an elected Prime Minister can be essentially impeached or unelected. This is particularly so in parliamentary systems, where by a simple vote of 61 to 59, a duly elected Prime Minister can be removed from office. We're talking about situations where that vote has not taken place, where the Prime Minister continues to serve but it is argued that perhaps, because of medical or other reasons, he is incompetent to serve," said Prof. Dershowitz.
Dr. Aviad Bakshi, head of the legal department at the Kohelet Policy Forum agreed, saying: “The bill is correct and proper, and it regulates an existing procedure. Incapacity is not a legal question, it's an objective functional question. Ousting the Prime Minister due to his normative functioning should be solely a political question."