The High Court of Justice (HCJ) suggested that the government return to the traditional appointment and dismissal method for the firing of Attorney-General Gali Baharav-Miara, but the attorney-general noted this week that it has failed to do so and is knowingly and deliberately trying to manipulate the process to meet its goals.
The government, through a ministerial committee headed by Diaspora Affairs and Combating Antisemitism Minister Amichai Chikli (Likud), unanimously decided to fire the attorney-general in August. The HCJ immediately froze the decision pending judicial review and urged the government in the meantime to return to the traditional dismissal method, which involves filling a committee it has failed to fill.
The government’s response to the HCJ, penned last week by Chikli and Justice Minister Yariv Levin (Likud) detailed that it is willing to hold discussions on its proposal to return to the public-professional committee – which was designed specifically to appoint or dismiss an attorney-general – provided that it will have the ability to sit without the presence of all of its required members, and also that the matter be resolved by next week.
To hire or fire an A-G, an external public-professional committee must convene and provide an expert opinion to the government before any decision is made.
The committee includes a retired Supreme Court justice as chair, appointed by the Supreme Court chief justice and by approval of the justice minister; a former justice minister or attorney-general, chosen by the government; an MK, chosen by the Knesset’s Constitution, Law, and Justice Committee; a lawyer, chosen by the Israel Bar Association (IBA); and a legal academic, selected by the deans of Israel’s law faculties.
THE TERM of an attorney-general is six years. If the government wishes to terminate it sooner, it must meet specific conditions – such as if there are consistent and severe disagreements between the A-G and the government, rendering their working relationship unproductive.
The justice minister must then submit a request to the committee, which holds a meeting, during which the A-G can present his or her side. The committee then submits its recommendations.
The attorney-general was previously a political appointment
Before 2000, the attorney-general was a political appointment. Three years before this process was codified, in January 1997, lawyer Roni Bar-On was appointed as attorney-general. He was not qualified for the position and resigned two days later after public and political outrage.
About a week later, it was revealed that his appointment was part of a deal between Prime Minister Benjamin Netanyahu and Shas head Arye Deri, who was then internal security minister, to advance a plea bargain in Deri’s corruption case.
Deri pushed for the appointment, in exchange for his party’s support of the controversial Hebron Agreement for the withdrawal of Israeli military forces from the city.
Deri was later indicted and was barred from politics for a decade. The committee was then established to prevent such a scenario from happening again.
Levin, however, has not been able to secure a single viable candidate for the position of former attorney-general or justice minister to fill the committee, because they all expressed their disapproval of his goal to fire the A-G.
The government’s position has been that it had earnestly tried to go the traditional route to fill the committee, but as it hasn’t succeeded, it formed a ministerial committee instead, which decided to fire Baharav-Miara back in August.
This, the A-G’s response notes, is a clear “foreign influence” on the entire process, and reflects the government’s true intentions: to avoid the public-professional committee altogether, or to manipulate it to its preferences, which chips away at its independence and guarantees the result the government wants.
THE RESPONSE further implies that the reason the current government isn’t satisfied with appointing a former attorney-general or justice minister is due to this person’s necessarily-apolitical nature – just like the nature and purpose of the committee itself.
It notes as well that “there isn’t now, nor was there ever, an objective reason for the government not to appoint” a former attorney-general or justice minister, but rather “it is worried that it won’t be able to ensure this person’s loyalty to its goal” of firing the A-G.
The Attorney-General’s Office further noted what Baharav-Miara had explained in a previous response – that the government’s decision defies legal precedent, was formed improperly, and also that the broader context of the fiery issue cannot be ignored.
When the government failed to issue a response to the court earlier this month, a conditional order was issued, which effectively threw the ball back to the government’s court to explain itself – and particularly why the court shouldn’t rule in favor of the petitioners.
The court also recommended then that the government cancel the decision to dismiss her. Then came the response by Chikli and Levin, which the Attorney-General’s Office noted on Monday “effectively rejects the court’s proposal altogether.”
The response reads, “The court’s proposal was clear, that the government announce if it accepts the offer to cancel the dismissal and return to the traditional dismissal framework – the public-professional committee.”
It adds that the government’s stipulations – that the committee be incomplete along with the deadline it posed – are “nothing but another attempt to force a new framework, on an ad-hoc basis and during ongoing legal proceedings.
The goal is to splinter the professionalism of the public-professional committee, as well as of its recommendation, and to ensure, ahead of time, the result.”
This position, the opinion notes, has been “crystal-clear since March: the firing of the attorney-general.”
Even the court has noted that it did not see a reasonable or logical reason for the government to veer from this method. Chikli and Levin had explained that the trust between the attorney-general and the government is so fraught that it has rendered their relationship unworkable, while Baharav-Miara stood on the position of the post: to stand guard against legislation that doesn’t align with the law.
This tension has permeated nearly every controversial decision the government has tried to pass, and is overshadowed by the distaste towards the criminal trials of Prime Minister Benjamin Netanyahu; the attorney-general is also the State’s chief prosecutor.
The Attorney-General’s Office added that the deadline the government posed – two weeks from September 15, when taking into account the High Holy Days – is wildly unrealistic.
The government has until October 30 to submit a complementary response.