Calls to enact a process to announce Prime Minister Benjamin Netanyahu as legally incapable of serving in his position grew following the release of a sworn affidavit by Shin Bet chief Ronen Bar on Monday.
In the affidavit, Bar asserted that Netanyahu decided to fire him due to a series of measures that posed political threats.
These included Bar’s refusal to approve security measures that would have delayed Netanyahu’s testimony in his criminal trial; the Shin Bet’s investigation into two cases concerning leaked classified documents and alleged public relations services that Netanyahu’s close aides provided to Qatar; the Shin Bet’s investigation into the October 7 massacre, which included criticism of the political echelon; and Bar’s insistence on the formation of a state commission of inquiry.
Bar also said in the affidavit that Netanyahu had pressured him to use tools reserved for subversion or threats of violence against leaders and “financiers” of the protests criticizing the judicial reforms.
The Prime Minister’s Office said that one of these leaders was lawyer Gonen Ben Yitzhak, one of the founders of the Crime Minister protest group.
Lastly, Bar said that Netanyahu had demanded of him that in the case of a constitutional crisis, he obey the prime minister and not the High Court of Justice. He also filed a classified affidavit with documents that he said were proof of his claims.
There is a quasi-constitutional Basic Law that reads as follows: “Should the prime minister be temporarily incapable of performing his duties, his position shall be performed by the substitute prime minister. After the passage of 100 consecutive days, during which the substitute prime minister served in the place of the prime minister and he did not return to perform his duties, he shall be considered to be incapable of performing his duties on a permanent basis.”
A later clause adds that “the government is considered to have resigned on the 101st day on which a replacement served in the prime minister’s stead.”
The law does not define the term “incapable,” but there are indications in court rulings from past years that suggest that, in certain extreme situations, the term may refer to “legally incapable” and not necessarily physically or mentally incapable.
In an attempt to prevent the “legally incapable” interpretation from applying to Netanyahu, the coalition in March 2023 amended the law such that it only referred to physical or mental incapacity.
However, the High Court of Justice ruled in January 2024 that the law would only apply beginning with the next Knesset since it was tailor-made specifically for Netanyahu and therefore amounted to improper use by the Knesset of constitutional power.
Deeming the prime minister “legally incapable” of serving in his position has never happened before, and the result would be unclear.
However, this is a highly controversial notion, since it would amount to the removal of the highest elected official, and perhaps to the fall of the government.
Opposition leaders have been wary to endorse such a move, which is known as “incapacitation,” out of concern that their support for it would delegitimize a political move in the eyes of the government’s supporters.
Opposition leaders have preferred to “leave the legalities” to the judicial system and focus instead on the realms of parliament and public opinion, according to two sources from the opposition.
National Unity MK's criticism
One member of the opposition, National Unity MK Matan Kahana, sharply criticized the idea of incapacitation. Kahana argued in a post on X/Twitter that demanding incapacitation was as severe as calling to disobey the High Court.
The legal battle over incapacitation has therefore mostly been fought by NGOs. One in particular, the Israel Democracy Guard (IDG), filed a petition to the High Court on Friday to issue a temporary injunction for the prime minister and government to explain why he should not be designated incapable of serving in his position.The IDG requested and received permission on Monday to add Bar’s affidavit to its appeal.
Netanyahu is standing trial on one count of bribery and three counts of fraud and breach of trust, and already in 2020, several groups petitioned the High Court to prevent him from serving as prime minister due to the inherent conflict of interest of being responsible for the governmental law enforcement system, while simultaneously being prosecuted by that same system.
The court, in an 11-0 ruling, struck down the petition and ruled that Netanyahu could serve as prime minister on the condition that he completed and respected a conflict-of-interest agreement. The agreement barred Netanyahu from involving himself in any matter that could affect his trial, particularly the law enforcement and judicial systems.
Numerous subsequent attempts and appeals to both the High Court and the Attorney General’s Office, mostly by NGOs, over what they claimed were violations of the conflict-of-interest agreement have been made.
Most of these appeals occurred since the current government took office in late 2022 and immediately launched its judicial reforms. They were largely unsuccessful – the attorney-general’s approach was generally to issue an opinion against incapacitation while reminding Netanyahu that the conflict of interest was legally binding.
The IDG’s petition was filed after Bar first alluded in a filing to the High Court on April 8 that Netanyahu had attempted to use the Shin Bet to delay giving testimony in his trial.
As its justifications for incapacitation, the IDG also mentioned the government’s attempts to fire the attorney-general; recent developments in criminal investigations into a number of Netanyahu’s close advisers over allegedly providing public relations services to Qatar while serving in the Prime Minister’s Office; incitement by Netanyahu against the judicial system and his adaption of the “deep state” conspiracy; and other developments.
The detailed affidavit filed on Monday strengthened their case, the IDG wrote on Monday in its request to add it to its petition, given that it showed that Netanyahu “intends to use the Shin Bet against High Court decisions.”
According to the IDG, “If another example of how the respondent [Netanyahu] is dismantling democratic rule in Israel was necessary, this statement by the Shin Bet head shows that the continued function of the respondent as prime minister poses a close if not immediate danger to the country’s fundamental character as Jewish and democratic.”
The Movement for Quality Government in Israel (MQG), demanded in a letter on Tuesday addressed to the attorney-general, the state attorney, the Israel Police commissioner, and the head of the police’s Intelligence and Investigations Department, to open a criminal investigation into the allegations as outlined in the affidavit, for obstruction of justice, violation of privacy, and breach of trust.
However, regarding incapacitation, MQG will wait to see if Netanyahu files his own affidavit by the deadline to do so on Thursday, before deciding on further legal action, according to Adv. Rotem Bavli Dvir, head of MQG’s legal department.
