The High Court of Justice (HCJ) rejected on Sunday the conditions set by the government to sit the public-professional committee to dismiss Attorney-General Gali Baharav-Miara.
In a position penned last month by Justice Minister Yariv Levin and Diaspora Affairs and Combating Antisemitism Minister Amichai Chikli, the government posited that it is willing to hold discussions on a proposal by the Supreme Court justice to resolve the tense issue, pending two conditions.
It explained that it would agree to return to the public-professional committee, designed specifically to appoint or dismiss attorneys-general, provided that it can attend without the presence of all of its required members, and also that the matter should be resolved within two weeks of the government’s request to the committee.
Earlier this month, the HCJ issued a conditional order on petitions against the firing and advised that the government cancel the dismissal.
The proposal, led by Supreme Court Deputy Chief Justice Noam Sohlberg, called for the government to reexamine 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 through a ministerial committee headed by Chikli to dismiss Baharav-Miara.
To hire or fire the A-G, the committee must convene to provide an expert opinion before any government decision is made. It includes a retired Supreme Court justice as chair, appointed by the Supreme Court chief justice and by the 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, specific conditions must be met – 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 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 the southern West Bank city.
Deri was later indicted and, as a result, was barred from politics for a decade.
The committee was created to avoid such a scenario from happening once more.
Government has failed to go the traditional route
Levin, however, has not been able to secure a single viable candidate for the position of former attorney-general or justice minister to sit on the committee because they have all expressed their disapproval of his mission. The government’s position has been that it has earnestly tried to go the traditional route, but as it hasn’t succeeded there, it formed a ministerial committee instead to dismiss the A-G.
The consistent position of the government has been that, at its legal core, the power to appoint someone to the role lies principally with the elected body – the government.
This position is based on the doctrine, which is 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.