High Court cancels Second Authority appointments over Netanyahu conflict of interest

All three justices agreed to void the appointment of Dr. Yifat Ben Hay-Segev as council chairwoman and those of attorney Kinneret Barashi and Dr. Haim Shine as members.

The decision sends the government back to the vetting stage for the body that regulates Israel’s commercial television and regional radio broadcasters, including channels 12 and 13 and their news companies.

The court found that Netanyahu acted in breach of the conflict-of-interest arrangement governing his conduct as a criminal defendant when he became involved in Ben Hay-Segev’s appointment.

Ben Hay-Segev was a prosecution witness in Netanyahu’s Case 4000 trial. Netanyahu personally approved placing her appointment on the cabinet agenda and participated in the initial discussion and vote.

The court did not find that Netanyahu attempted to influence her testimony or that her appointment was offered as a reward. It ruled that no such finding was necessary.

His conflict-of-interest agreement simply barred him from dealing with personal government matters involving witnesses in his criminal trial. If he believed his involvement was necessary, he was required to consult the Attorney-General’s Office first. He did not do so.

The government and Ben Hay-Segev argued that the restriction was no longer relevant because she completed her testimony in December 2022.

The court rejected that interpretation. Amit wrote that the agreement is intended not only to prevent interference with testimony, but also to prevent the appearance that a prime minister is using public powers to benefit someone who testified in his trial; it does not stop applying automatically once a witness leaves the stand, he explained.

The government attempted to correct the problem by holding another vote on March 31 without Netanyahu. Justice Minister Yariv Levin chaired that meeting in his place, and the ministers again approved the appointments unanimously.

The court ruled that the second vote did not provide the government with a clean start. It took place only a week after the first, relied on the same information and expressly stated that the original decision remained valid. The government said it held the vote to avoid the appearance of impropriety, rather than because it was truly reconsidering the appointment.

In those circumstances, Amit found, Netanyahu’s absence from the room was not enough to remove the influence of his earlier participation.

The court stressed that Ben Hay-Segev herself was not responsible for the violation. It also did not permanently bar her from the position: If Karhi proposes her again, legal advisers will first have to determine whether and how the conflict created by Netanyahu’s involvement can be resolved.

The problem with Barashi and Shine was different. Both had repeatedly made harsh public statements about broadcasters and journalists who would come under their supervision as council members. The appointments committee approved them without examining those statements or considering what they might mean for their ability to regulate those organizations fairly.

The council has the power to make decisions directly affecting broadcasters, including imposing financial penalties and taking action concerning their operations and licenses.

The court did not rule that Barashi and Shine must be excluded because of their political views or public criticism of the media. It ruled that the committee had to know about the statements and decide whether the two could still exercise their powers impartially, or whether limits would be needed on the matters in which they could participate.

Stein emphasized that even openly hostile political statements do not ordinarily disqualify someone from public office. He said the committee could approve Barashi and Shine again after a proper examination, potentially subject to strict rules preventing them from participating in decisions involving organizations or journalists they had attacked.

The broader question was what should happen to the other members of the proposed council, whose individual appointments were not found defective.

Amit and Ronnen concluded that the remaining appointments could not simply be left standing. The council is meant to function as a balanced 15-member body reflecting a range of views, rather than as a collection of unrelated individual appointments.

Once the three appointments were canceled and two other proposed members had resigned, only 10 of the government’s 15 selected members remained. The appointments committee had also said that its approvals would remain valid for only three months, a period that had already expired.

The majority therefore ordered the committee to reconsider the proposed council as a whole, using current information. Stein disagreed, saying there was no reason to reopen appointments in which the court had found no serious flaw. Karhi is not required to renominate the same people. If he wishes to do so, however, they must first return to the appointments committee. The government would then have to vote on a newly approved slate.

Until that process is completed and a new council is lawfully installed, the outgoing Second Authority Council will remain in office.

The government was ordered to pay NIS 50,000 in legal costs, divided among the five groups that filed the petitions.

The court did not decide claims that actions taken during the litigation were intended to interfere with the proposed acquisition of Reshet, which operates Channel 13. It also made no final ruling on claims that the proposed council failed to provide adequate representation, leaving that issue for the appointments committee to examine if the process resumes.