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Q&A: The High Court Petition on Incapacitation

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Originally published:
This is an English translation (via GPT-5.4). Read the original Hebrew version.

The High Court Petition on Incapacitation

Question

What does the Rabbi think about the ruling there?

Answer

This is what I wrote to a judge friend who sent me the summary of the ruling:

It’s astonishing. Once again, the split is made with a razor-sharp knife between conservatives and everyone else. No surprises, and the whole thing is rigged. Whoever determines the panel determines the outcome. This is an intolerable situation, even though the decision itself seems very reasonable to me.
How can one then argue against representativeness on the court? The sanctimonious pretense that everything is professional and not dependent on the judges’ personal agendas and values is outrageous shamelessness.
In the past I listed for you rulings on religion-and-state issues in which, every single time, the opinions were divided categorically between religious and secular judges. Of course, the majority is always secular. And again, whoever determines the panel thereby determines the outcome.

Discussion on Answer

Bim Bam Boom (2024-01-04)

It seems to me that our teacher is mistaken on the facts

In many rulings, conservatives have ruled liberally
and vice versa,
in the Israeli High Court that I follow.

Michi (2024-01-04)

I’m not mistaken. I know the cases, and I didn’t say there are no exceptions. But in the last two rulings the split was unequivocal. In a series of rulings on religion-and-state issues there was an unequivocal split, without a single exception, between religious and secular judges.

Y. (2024-01-04)

There’s research showing that religion and state is the main area where the phenomenon the Rabbi describes really exists (research by Keren Weinshall from the Hebrew University). In other areas there isn’t such a sharp pattern. Maybe today one could also add intervention in Basic Laws, but that’s a topic where it’s very natural for there to be a correlation with a conservative/liberal outlook.

Avi (2024-01-04)

It’s worth noticing that, quietly and without much fuss, a Basic Law was effectively nullified here too. Besides that, the court implicitly held that it is permissible to “declare” a prime minister incapacitated even if he is physically and mentally fit. In other words, the civil service is allowed to suspend the elected prime minister.

And having said all that: postponing the application of a law to the next term is in itself a reasonable thing, which really can neutralize ulterior motives. Maybe that’s a practice that should be adopted for every change to a Basic Law.

Michi (2024-01-04)

It’s also worth noticing that, quietly and without much fuss, this coalition of horrors is legislating personal Basic Laws. That seems far more serious to me.
And by the way, no Basic Law was nullified here; its application was postponed. The court also did not implicitly determine anything at all. It simply left the situation as it currently stands, whatever that may mean. If anything, then by enacting this legislation the coalition itself implicitly determined that under the current situation it is permissible to declare a prime minister incapacitated.

Avi (2024-01-04)

Under the existing situation there was a lacuna (it wasn’t explained what incapacitation is). The Knesset tried to clarify that, a clarification which in my opinion is completely sensible, almost dictionary-like. By rejecting that clarification, the court in effect ruled implicitly that incapacitation is not limited to a medical or mental condition.

I agree with you that it would have been better had the Knesset determined from the outset that the law would apply only from the next Knesset onward.

The fact that the coalition is dysfunctional is not relevant to the matter. A dysfunctional Knesset is still a Knesset, just as a dysfunctional court is still a court.

Michi (2024-01-04)

Fine, I already explained that.
As for the end of your remarks, I couldn’t follow. A dysfunctional Knesset is a Knesset just like a dysfunctional court is a court. Correct., And just as people criticize the court for being dysfunctional, they criticize the Knesset for being dysfunctional.. So what’s your point?? Do you think it’s wrong to criticize the Knesset for enacting a personal Basic Law just because it’s the Knesset?? So we might as well just shut the whole thing down..

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