The government is willing to hold discussions on a proposal by the Supreme Court justices to resolve the tense issue of its firing of Attorney-General Gali Baharav-Miara, it informed the High Court of Justice late Sunday night.
The position, penned by Justice Minister Yariv Levin (Likud) and Diaspora Affairs and Combatting Antisemitism Minister Amichai Chikli (Likud), reads that the government would agree to return to the public-professional committee, which was designed specifically to appoint or dismiss attorneys-general – provided that it will have the ability to sit without the presence of all of its required members, and also that the matter should be resolved within the next two weeks.
Earlier this month, the High Court issued a conditional order – which serves as a legal warning – on petitions against Baharav-Miara’s firing. It also advised that the government cancel the dismissal.
The justices’ suggestion, led by Supreme Court Deputy Chief Justice Noam Sohlberg, was for the government to examine calling up the committee, the makeup and conditions of which were established by the Shamgar Commission in 2000. The government, led in these efforts by Levin, unanimously voted in early August in a ministerial committee headed by Chikli to dismiss her.
To hire or fire the A-G, an external public-professional committee must convene and provide an expert opinion before any government decision is made – these were the protocols stipulated by the Shamgar Commission in 2000.
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 end the term early, it has to meet specific conditions – such as if there are consistent and severe disagreements between the A-G and the government, rendering their working relationship unproductive.
If this is the case, 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.
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 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 southern West Bank city.
Deri was later indicted after a police investigation concluded that charges should be brought, and as a result, he was barred from politics for a decade.
The committee was created to avoid such a scenario from happening once more.
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 mission. The government’s position has been that it had earnestly tried to go the traditional route, but as it hasn’t succeeded there, it formed a ministerial committee instead.
The Sunday position, consistent with previous ones, asserts that, at its legal core, the power to appoint someone to the role lies chiefly with the elected body – the government. This is based on the principle, based in Halacha and used in evidence and contract law, that “the same authority that imposes a restriction is the one empowered to lift it,” meaning that the government body that prohibits an act also holds the power to permit it; if the government is the one to appoint her, it can do the opposite as well.
Who has the power to appoint the attorney-general?
The two noted that the condition that the once-working relationship between the government and the attorney-general has been rendered useless necessitates that someone else be appointed instead.
Opponents to this move view it as the aggressive removal of one of the two most significant – and sole – checks on the government’s power that exist in the Israeli rule of law.