High Court of Justice in Israel Grapples with Controversial Incapacitation Law

The High Court of Justice in Israel convened on Thursday to hear petitions challenging the incapacitation law, a controversial amendment to the country’s quasi-constitutional basic laws, aimed to prevent Prime Minister Benjamin Netanyahu from being declared incapable of service. The law was allegedly passed to protect Netanyahu’s legal situation.

This case could have broader implications on the court’s stance toward the recently passed “reasonableness law,” which cancels the standard of reasonableness as a basis for the judicial review of laws and government actions. The court is scheduled to hear petitions to cancel the reasonableness law in September. In both cases, it is reviewing amendments to Israel’s basic laws. The High Court has heard petitions related to basic laws before but has never struck one down.

Dr. Guy Lurie, an attorney and research fellow at the Israel Democracy Institute, told The Media Line that it was too early to know if the court would intervene. If it does, striking down the incapacity amendment to the basic law is not the only possibility. The court could, for example, say the amendment will only apply after the next elections.

Lurie added that even if the petition is approved and the amendment is voided, ousting Netanyahu by declaring him incapacitated would not be easy. In a 2021 case, the court rejected a petition requesting Netanyahu’s incapacitation. At that time, the court acknowledged that extraordinary circumstances might justify a declaration of functional incapacity due to his indictment on corruption charges but emphasized that he was bound by a conflict-of-interest agreement to mitigate suspicions surrounding his ongoing criminal trial.

Large red balloons, emblazoned with “Incapacitate,” floated above the court’s entrance in Jerusalem as several organizations protested against the law.

Supreme Court President Esther Hayut and Vice President Uzi Vogelman rigorously challenged both petitioners and the attorney general’s representative. They questioned the connection between the incapacitation law and Netanyahu’s corruption trial, as well as the conflict of interest agreement that restricted him from interfering with the government’s judicial restructuring plan.

Hayut appeared to side with Knesset Legal Adviser Yitzhak Beret, agreeing that changing incapacitation provisions had no legal impact on the conflict of interest agreement.

The attorney general’s representative argued that the law was a deeply personal creation for Netanyahu’s benefit, while Beret defended it as filling a legal gap. Hayut remained skeptical, emphasizing that the law was passed on behalf of Netanyahu and possibly constituted an abuse of constitutional authority.