Baharav-Miara’s efforts to turn her own political preferences into law binding on the government

PHOTO: TOMER NEUBERG/FLASH90

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efore Pesach, we published two articles related to Israel’s attorney general. The first dealt with how former High Court president Aharon Barak invented vast powers to check the government out of whole judicial cloth and invested them in the attorney general, with no statutory basis; and with the judicial philosophy underpinning Barak’s “constitutional revolution.”

The second examined the handling of the government’s desire to fire Shin Bet chief Ronen Bar by the current attorney general, Gali Baharav-Miara. We placed her efforts on Bar’s behalf in the context of efforts by her predecessors to use the powers conferred by the High Court to protect the government legal establishment.

In this third and final segment, we will explain how Baharav-Miara’s efforts to shackle the government have been so oppressive that the government eventually decided it had no choice but to take the unprecedented step of firing her if it hoped to function at all. Rather than serve as the legal advisor of the government — her official job title — Baharav-Miara has adopted a thoroughly adversarial stance to the government.

Among the complaints in an 800-page report on her tenure compiled by Justice Minister Yariv Levin is that she has treated left-wing demonstrators with kid gloves compared to those from the right-wing. At the time of the 2005 Gaza withdrawal, 700 indictments were filed against anti-withdrawal protestors. The pre–October 7 anti-Netanyahu protests repeatedly blocked Tel Aviv’s Ayalon Highway, yet they resulted in only four indictments.

As Baharav-Miara explained with respect to the anti-Netanyahu demonstrations, “Effective public protest requires obstruction of public order.”

And therefore, such obstruction is permitted? If it is against Netanyahu?

Israel has a Basic Law that sets out the procedures in the event the prime minister is incapacitated. Incapacitation has always been thought to mean physical or mental incapacitation, as is almost universally the case. But the attorney general effectively amended the statute to include something called “substantive incapacitation,” in the event that the prime minister is unable to properly fulfill his duties, for instance, because of the burden of defending himself in criminal suits. And who would determine that substantive incapacitation, in the first instance? The attorney general, of course, meaning that Netanyahu would serve at her pleasure.

The Knesset then passed an amendment to the incapacitation law clarifying that incapacitation refers exclusively to physical or mental incapacitation. Such clarification of preexisting statutes in light of judicial statutory interpretations at odds with the legislative intent is a typical legislative function.

When the clarifying amendment came before the High Court, however, the attorney general urged the Court to rule that it was invalid on the grounds that it was passed specifically to protect Prime Minister Netanyahu, even though all it did was to clarify the existing statutory language, about which there had never been any question. While the High Court did not strike down the amendment, it ruled that the amendment would only go into effect at the end of the term of the current government. So Netanyahu remains on the attorney general’s leash.

In perhaps the most important case to ever come before the High Court, the attorney general argued against a Basic Law passed in the Knesset by the governing coalition. Former Court president Aharon Barak declared a “constitutional revolution” based on two 1992 Basic Laws passed in the middle of the night, with less than half the Knesset voting, and in one case with only 23 out of 120 votes in favor.

Yet when the Knesset passed an amendment to the Basic Law of the Judiciary, which forbade the High Court from striking down Knesset legislation and executive actions, within the executive’s statutory powers, solely on the grounds that the law or the action in question lacked “reasonability,” the attorney general opposed the law before the High Court. The Court narrowly struck down the amendment 8–7.

Inasmuch as the Court itself had repeatedly declared the Basic Laws an embryonic constitution, the High Court effectively declared the constitution to be unconstitutional. By what standard? Apparently by some Platonic ideal of a constitution known only to those eight justices. That reminds one of the former Court president Moshe Landau’s description of the High Court under his successor Aharon Barak as viewing themselves as a group of Platonic guardians.

Baharav-Miara has also ruled several times that government appointments were invalid. In the best-known such case, she sought to nullify the appointment of Professor Odelia Minnes, a respected law professor, as temporary chair of the Second Broadcast Authority, on whose board she already sat. Baharav-Miara sided with the Movement for Quality Government in Israel’s petition to the High Court challenging the appointment. And she went one step further by denying Communications Minister Shlomo Karhi’s petition for the right to hire independent counsel to represent the government before the High Court.

A three-judge panel of the High Court rapped Baharav-Miara’s knuckles on two accounts. On the issue of the government’s right to be represented before the High Court, Justice Noam Sohlberg wrote scathingly that he found no precedent whatsoever for the standard offered by the attorney general that the government is only entitled to representation on constitutional issues or ones of clear public importance when the attorney general adopts a stance contrary to that of the government.

And on the substantive issue of Minnes’s qualifications to be temporary chair, Sohlberg noted that such an appointment must be made from among the board members of the Second Broadcasting Authority, and there were no other such members who had both the qualifications Minnes lacked and wanted the position.

Lastly, when the International Criminal Court brought proceedings against Prime Minister Netanyahu and then defense minister Yoav Gallant, the attorney general ruled that the government must appoint an official state commission of inquiry headed by the president of the Supreme Court and in which he would control the appointment of the other judges. Such a commission was needed, she urged, because one of the grounds on which the ICC can decline jurisdiction is if the charges are being investigated by the relevant country.

Yet the ICC rules do not specify what type of investigation of the charges is necessary. So, Baharav-Miara was effectively using the ICC proceedings to force upon Netanyahu, in the midst of a war, a commission of inquiry run by those identified with the far left of the Israeli political spectrum. No wonder Netanyahu declined her advice.

As the government pushes ahead with its plan to fire the attorney general, protestors are claiming, as they inevitably do, that any change in the existing judicial and governmental system is an all-out attack on the rule of law.

Former Court vice president Menachem Elon long ago gave the complete answer to that claim: When judges strike down legislation or effectively write new laws found nowhere in the statute books solely by the light of their own reason, that is not the rule of law, but rather the rule of the judges. The same applies to Baharav-Miara’s efforts to turn her own political preferences into law binding on the government.

(Originally featured in Mishpacha, Issue 1058. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)