Bennett's government and the legal front - analysis

A look at the government's successes and failures on the legal front, one year into Bennett's coalition

From left: Finance Minister Avigdor Liberman, Prime Minister Naftali Bennett, Justice Minister Gideon Sa'ar and Deputy Prime Minister Abir Kara. (photo credit: KOBI GIDEON/GPO)
From left: Finance Minister Avigdor Liberman, Prime Minister Naftali Bennett, Justice Minister Gideon Sa'ar and Deputy Prime Minister Abir Kara.
(photo credit: KOBI GIDEON/GPO)

No one will ever resolve the national debate over whether the judiciary is too activist or not active enough or whether the trial against former prime minister Benjamin Netanyahu is positive or negative. But it is undeniable that the current government took many significant legal actions after a period of unprecedented chaos and frozen processes between the government and the legal establishment.

The issue that stands out the most is probably appointments.

Under the Netanyahu government, for extended periods, there was no permanent justice minister, no Justice Ministry director-general and no state attorney.

This was part of the fallout from multiple years of elections and political deadlock between the co-ruling Likud and Blue and White parties.

In contrast, Gideon Sa’ar was promptly appointed justice minister, and he promptly appointed Eran Davidi to help him run the ministry and Amit Aisman as permanent state attorney.

Whatever one might think of a particular policy or case, this stabilized the ministry and prosecution and headed off a continued period of chaos.

Justice Minister Gideon Sa'ar is seen pointing at Benjamin Netanyahu's signature on a Likud-sponsored bill to stop Ehud Olmert from being able to form a government, in the Knesset on July 26, 2021. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)Justice Minister Gideon Sa'ar is seen pointing at Benjamin Netanyahu's signature on a Likud-sponsored bill to stop Ehud Olmert from being able to form a government, in the Knesset on July 26, 2021. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

Sa'ar's successes and failures

Next, Sa’ar and the government appointed Gali Baharav-Miara as the new attorney-general.

There had been concern that the post would be left unfilled by continued Likud-Blue and White deadlock.

On the center-left, there had been concern that Netanyahu would try to appoint someone who would prematurely end his trial.

Baharav-Miara is still defining herself, having only been in office for four months. But she has mostly stayed out of the crosshairs of politicians and tried to restore her office and the prosecution to a space outside of partisan politics.

Critically, she did declare the current government clean of wrongdoing during the Pegasus police spying scandal and backed the prosecution on continuing the Netanyahu case despite a recent setback when the court rejected a prosecution request to amend the indictment.

These two issues are also notable for the current government. The political class did not intervene in the Netanyahu trial, and while the Pegasus scandal exposed errors by the police, the government did not allow the issue to destroy the police or its cyber unit.

One major defeat for Sa’ar is that he failed to split the attorney-general’s office away from any prosecutorial role, one of his stated main goals and conditions for joining the government.

Supreme Court appointments

This government also succeeded in ending the logjam for Supreme Court appointments. Justices Menachem Mazuz and Hanan Melcer both stepped down in April 2021 and both gave extensive advance notice that they would be stepping down.

Normally, their replacements would have been selected months before their retirement. This would enable an orderly transition and ensure that the Supreme Court was not short-handed in dealing with its intimidating caseload.

Instead, their seats remained empty until February of this year, when Sa’ar and his committee filled them.

Sa’ar also provided temporary Supreme Court appointments in the interim.

Next, Sa’ar succeeded in having the government adopt public hearings for nominees to the Supreme Court. He even received unexpected support from Chief Justice Esther Hayut for one of the most radical changes in selecting Supreme Court nominees in over a decade.

SUPREME COURT President Esther Hayut arrives to petitions against the Jewish Nation-State Law, at the Supreme Court in Jerusalem in December 2020. (credit: YONATAN SINDEL/FLASH90)SUPREME COURT President Esther Hayut arrives to petitions against the Jewish Nation-State Law, at the Supreme Court in Jerusalem in December 2020. (credit: YONATAN SINDEL/FLASH90)

The judiciary strongly opposed earlier proposals for Knesset hearings and before the cabinet concerned that it would politicize the process.

However, Sa’ar’s proposal kept the hearings before the limited nine-person Judicial Selection Committee. A majority of its officials were not politicians. Some interviews were simply televised.

Opening up hearings to the public could reduce criticism of insider deals and reduce the number of judges being forced to resign due to infractions.

Another major change in relations between the government and the legal establishment came on February 21 when Prime Minister Naftali Bennett became the first prime minister to personally address an Israel Bar Association Conference.

The move followed careful work by bar association president Avi Himi and presented a stark contrast to Netanyahu, who had been at war with the legal establishment and who was mostly mentioned at conferences in terms of his personal legal troubles.

New laws passed by the new government

Besides these broader moves, the government also approved or advanced around one dozen new laws which have substantially altered aspects of the legal arena.

A significant change would be the proposed Basic Law for Rights During Criminal Proceedings which has already passed some Knesset readings.

The rights to a fair hearing and due process both before and during a trial are given the elevated status of constitutionally enshrined principles. These rights are designed to protect a detained person, suspect or defendant from abuse of power by the state and its apparatuses at the time that they are in a weak and vulnerable position.

Another bill that has passed some Knesset readings would disqualify evidence used illegally by law enforcement, such as barring police from using the “fruit of the poisonous tree” for a later trial.

The law for minimum sentencing for illegal weapons possession and other laws have been fully approved.

Despite these accomplishments, the laws which have almost passed but may never get passed, and those that have failed, like the term limits bill, show that the current government did not completely change the playing field. Rather, it mostly restored more functional working relations between the political and legal classes.

This also means that if a Netanyahu government returns to power in the coming months, it would not be too hard to carry out a counter-revolution, cheered on by the long-frustrated Right.