After the government failed to provide the High Court of Justice with a response to the temporary injunction on its move to dismiss Attorney-General Gali Baharav-Miara, the court announced on Monday evening, in a unanimous decision, to cancel the planned hearing on the matter set for Wednesday.
The government, led in these efforts by Justice Minister Yariv Levin (Likud), unanimously voted in early August in a ministerial committee headed by Diaspora Affairs and Combating Antisemitism Minister Amichai Chikli (Likud) to dismiss the attorney-general.
Supreme Court Deputy Chief Justice Noam Sohlberg issued a temporary order a few days later, blocking it from advancing and taking effect until the decision itself could undergo comprehensive judicial review.
A temporary order is issued while a case is still being heard and is meant to keep the status quo until the judge reaches a final decision. Effectively, it is a legal pause to make sure nothing happens in the meantime that would render the court’s final ruling pointless.
Since the government failed to provide a response to the petitions against its decision and failed to request an extension on the deadline, the temporary orders asked for by the petitioners were granted by the panel.
The legal protocol for hiring or dismissing an attorney-general was codified by a government decision that passed in 2000, following the Bar-On-Hebron Affair and formulated by the Shamgar Commission.
The commission established a public-professional committee made up of a retired Supreme Court justice as chairperson appointed by the Supreme Court president 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; and a legal academic, selected by the deans of the law faculties.
If the government wishes to end the term early, it has to meet specific conditions, after which the justice minister must submit a request to the committee. It then holds a meeting, during which the A-G can present his or her side. The committee then submits its recommendations to the government so that it can advance with a decision.
The reason the committee was established in the first place –fear of straight politicization of the attorney-general, who garners immense power and has a unique position in Israel, is the Bar-On Hebron Affair.
What was the Bar-On Hebron Affair?
In January 1997, lawyer Roni Bar-On was appointed attorney-general by Prime Minister Benjamin Netanyahu. He was not qualified for the position and resigned soon after, amid public and political outrage.
About a week later, it was revealed that his appointment had been part of a deal between Netanyahu and Shas head Arye Deri, who was then the 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 some parts of the city.
Deri was later indicted after a police investigation resulted in charges, and as a result, he was barred from politics for a decade. The Shamgar Commission was then formed to make sure the role of the country’s chief prosecutor and lead interpreter of the law did not become a political appointment.
Levin was unable to fulfill the necessary requirements to fill the committee – no eligible former justice ministers or attorney-general agreed to sit on it, having all expressed disapproval and distaste with the justice minister’s direction and approach.
A new committee – a ministerial one – was therefore created by the government to fire the A-G, chaired by Chikli. The government, for its part, had said that it did its duty and tried to fill the committee by going the traditional and legal-precedent route, but it couldn’t. Critics decried the fully political makeup of the committee.
“We have not been presented yet with convincing enough arguments that justify traversing from this decision” to condition the dismissal on a consultation with the public-professional committee, the bench said.
The court unanimously recommended that the government return to the committee-consult model.
The government has until September 14 – just under two weeks away – to inform the court if it is to accept its ruling to cancel the decision to fire Baharav-Miara. Until then, Sohlberg’s temporary order remains in effect.
Keshet Neev contributed to this report.