Two recent confrontations between Israel’s judiciary establishment and democratically-elected Prime Minister Benjamin Netanyahu appear to be separate attempts to declare the PM unfit to serve, or incapacitated. One was the Jerusalem court’s decision to deny Netanyahu the delay he requested before testifying in his own trial; the other was a demand from the AG that Netanyahu fire National Security Minister Itamar Ben Gvir.
In early February 2023, when the civil war over judicial reform was at its height, the High Court of Justice ordered Attorney General Gali Baharav-Miara and Netanyahu to respond to the petition of the Movement for Quality Government in Israel, which demanded that Netanyahu be declared incapacitated for his involvement in the judicial reform.
According to the Knesset website, “incapacitated” describes a situation where a government official cannot fulfill his duties for certain reasons. The lack of ability to fulfill these duties can be temporary if the office bearer will return to fulfill his position, or permanent if it is clear that the office bearer will not return to fulfill his duties.
Regarding the incapacity of the Prime Minister, Article 16 of the Basic Law: The Government establishes instructions regarding the filling of the position of the Prime Minister. According to section (a), if the prime minister is absent from the country, his deputy will call the government meetings and preside over them. According to section (b), if the Prime Minister is temporarily unable to fulfill his duties, the Acting Prime Minister will take his place. If 100 consecutive days have passed in which the acting prime minister served instead of the prime minister, the prime minister is considered to be permanently prevented from fulfilling his duties. According to Article 20(b) of the Basic Law, if the Prime Minister is prevented from fulfilling his duties permanently, the government is considered to have resigned on the 101st day on which the Acting Prime Minister holds office.
And that, folks, is how a judicial Coup D’état happens in Israel. The good government folks didn’t come up with the idea on their own. The move was clearly manufactured by the AG. Earlier in February 2023, Baharav-Miara ordered Netanyahu to refrain from interfering with changes in the judicial system due to his conflict of interest because of his trial. This was based on the 11-0 High Court decision to allow Netanyahu to run for the Knesset and become prime minister as long as he did not engage in issues having to do with his corruption trial.
Of course, the trial itself is based on a plot hatched by the Israel Police, the state prosecution, and then-Attorney General Avichai Mandelblit, pushing accusations that are being exposed every week as shoddy, and involving unethical pressure on individuals to appear as state witnesses or lose everything.
The AG sent the PM a letter “regarding the implementation of the opinion for the prevention of conflict of interest prepared for him during his previous term of office, concerning initiatives for changes in the judicial system.”
The trap was set.
Almost two years have passed, Israel endured its most devastating existential attacks on two fronts, Netanyahu proved to be a tough and resolute military leader – but the coup d’état continued in the background of all this drama, aimed at catching the PM walking into a conflict of interest.
The coalition took defensive action, and in March 2023 pushed an amendment to the incapacity clause stating that the Prime Minister can only be declared incapacitated on the basis of physical or mental incapacity. Naturally, shortly thereafter, the High Court revoked this amendment. As far as the justices were concerned, “incapacity” was anything they could grab onto in a decision to reverse the electoral choice of some two million voters.
FAST FORWARD: THING 1
Netanyahu’s defense team submitted a request to the District Court that the prime minister’s testimony in his trial be postponed for two and a half months, due to the war. Netanyahu is scheduled to testify on December 2. On Monday, the court denied the request.
It should be noted that Israeli courts have traditionally been known to grant delays upon delays, especially over security issues. Soldiers who tell the court they are needed in their units are routinely permitted to come back months later. The court’s decision to force the commander of the security system to testify while conducting a major war was a clear attempt to push him to a state of incapacity.
A prime minister cannot wage war and at the same time testify three days a week for several weeks in court. As I pointed out above, this bizarre arrangement was legalized by the High Court of Justice with a majority of 11-0. Constitutionally, the court determined that an accused politician cannot be prevented from forming a government based on unproven charges – but he can be prevented from influencing his trial through a conflict-of-interest arrangement. If Netanyahu violated the arrangement, off to the incapacity chamber he goes.
It was presumed that by denying the PM his delay, the court imagined Netanyahu going on a temporary three-month hiatus to prepare his testimony and to testify. Yes, while the war is raging.
The AG’s representative Dr. Gil Limon wrote:
“Our position is that there is a clear public interest that requires the criminal proceedings in the Prime Minister’s case to be concluded as quickly as possible, including that the defense case begin on the scheduled date and not be postponed any further. It is understood that if there is a change in the factual infrastructure on which our position is based, as detailed above, and to the extent necessary, there will be room to consider the request to update the conflict-of-interest arrangement,” meaning to declare Netanyahu incapacitated – not based on his health, physical or mental, but on the fact that he is unable to juggle both conducting the war and testifying, and so, according to the AG’s office, testifying takes precedence.
Attorney Dafna Holtz-Lechner, representing some families of the hostages alongside a group of heads of academia and senior retired IDF generals, spelled it out:
“There is no way to regulate and/or prevent the existence of the reasonable concern that [Netanyahu] may have a conflict of interest during the conduct of war, by drawing up an arrangement or updating the existing arrangement,” and therefore, “The Attorney General is hereby requested to take the extreme measure of disqualifying Netanyahu from serving as Prime Minister and to order that he be barred from continuing to serve in his public office.”
There you have it: the coup d’état, which has been waiting to claw at its prey since mid-2022.
THING 2
Attorney General Gali Baharav-Miyara on Thursday sent a letter to Prime Minister Netanyahu today in which she wrote: “You must reexamine your position regarding Minister Ben Gvir’s tenure.”
Her statement reads:
“The combination of the allegedly improper interventions in the activities of the police and the dependence of police officers on the minister for their promotion undermines the possibility of ensuring that the police will act out of loyalty to the public and not to the political echelon.
“Since he was appointed to the position, Minister Ben Gvir has apparently influenced and interfered in a blatant, improper, and repeated manner in the use of police power.
“During his tenure, Minister Ben Gvir has expressed himself in a way that is likely to deter judges from doing their job, lead to their decisions being disparaged even by police officers, deter law enforcement officials from fulfilling their duties, and delegitimize the investigations of police officers by the Criminal Investigation Department.”
Now, all of the above is a steaming pile of horse-pucky. For one thing, every internal security minister going back to 1948 was involved in appointments and other decisions regarding the police – since Prime Minister David Ben Gurion got his son Amos the job of Deputy Inspector General of the Israel Police. Indeed, we probably want it this way, especially since under Ben Gvir, the police have become tougher in dealing with anarchists who block traffic on major arteries and set fire to the asphalt. As long as the minister doesn’t use police officers to serve quarter-chickens at his son’s bar mitzvah, we’re cool.
Also: the AG, which is an appointed position, does not have the authority to disqualify elected officials unless they broke the law. Calling on the PM to sack a minister because he exceeded the limits of his office is not within her purview.
But the AG’s target was not Itamar Ben Gvir. As always, her and the judicial establishment’s crosshairs are focused on Netanyahu. And so, the attack on Ben Gvir was yet another attempt to ignite a skirmish that would lead to declaring Netanyahu incapacitated.
Minister Ben Gvir wrote Netanyahu in response: “I call on the Prime Minister to reexamine his position on the tenure of Attorney General Gali Baharav-Mayara.
“The combination of the allegedly improper interventions in government policy and the dependence of government ministers on the AG for their tenure undermines the possibility of ensuring that the government will act out of loyalty to the public and not to the legal echelon.
“Tonight, the advisor began an attempted coup against an elected government in Israel, and I call on the Prime Minister to consider dismissing her.”
This is what the AG had been seeking all along – growing pressure on Netanyahu from within his cabinet to get rid of Baharav-Miara, who has been acting as a subversive fifth column in his government, sabotaging and torpedoing countless government decisions, and when government ignored her, joining High Court petitioners against the government.
The AG, the prosecution, and the courts are looking forward in anticipation of Netanyahu’s breaking point when he would finally give in to his ministers and ask Justice Minister Yariv Levin to fire Baharav-Miara. Because even if the PM does not fire her himself, even if he only blinks approvingly at his justice minister, the courts, prosecution, and AG would come down on him like screeching vultures with a decree of incapacitation for crossing the red line set by the High Court’s 11-0 decision.
These are the pillars of Israel’s historic aristocracy, and they’re not about to let the multitudes govern their country, never mind their bigger vote base. Much like France’s royal dynasty, the Bourbons, Israel’s ruling families didn’t learn anything and didn’t forget anything. May God remove their yoke from our necks and their boots from our backs.
