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High Court refuses to hear challenge to AG’s ‘neutrality’ on reform

The petitioners asserted that Israel's attorney general has a conflict of interest regarding the bill to place limits on her powers.

Attorney General Gali Baharav-Miara at the Supreme Court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Attorney General Gali Baharav-Miara at the Supreme Court in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.

Israel’s Supreme Court, sitting as the High Court of Justice, on Wednesday refused to consider and dismissed as baseless a petition alleging that the attorney general has a conflict of interest when it comes to her decisions regarding the government’s reform program that would place limits on her authority.

The petition, submitted by several NGOs including the Lavi organization, Im Tirtzu and the Movement for Governance and Democracy, argued that Attorney General Gali Baharav-Miara is unfit to rule on matters relating to the ongoing judicial reform.

The NGOs argued that the judicial reform would directly limit the power of the attorney general and her subordinates, leading to a clear conflict of interest.

The court fined the main petitioner, the Lavi organization, 5,000 shekels ($1,383), saying, “Baseless petitions like this receive the same treatment—dismissal outright—and in appropriate cases even fines.”

According to the proposed reform, the decisions of the attorney general would no longer be legally binding. Furthermore, both she and her subordinates would have to defend the preferred legal position of their assigned government body or allow them to seek their own private legal counsel.

The petitioners further argued that there is already a precedent for blocking high-profile members of the government from interfering with the judicial overhaul due to a conflict of interest. Two months ago, Baharav-Miara ruled that Prime Minister Benjamin Netanyahu cannot publicly discuss the judicial reform program due to a conflict of interest surrounding his criminal proceedings.

A political bias

“The decision of the court shows a political bias. When a person’s job and power are threatened, how can you possibly claim that there is no conflict of interest?” asked Joshua Lent, director of external relations for Im Tirtzu, in an interview with JNS.

In a public statement on Wednesday, Yona Shirki, the lead attorney who presented the petition before the court, said, “The petition was not only rejected outright without a plausible reason apart from vague slogans but also, unusually, a large court fine was imposed on the petitioners. All of this despite the fact that the defendant, the attorney general, was not even required to submit a response to the allegation.”

The court said that the petitioners failed to establish a reasonable claim of personal interest on the part of Baharav-Miara and that in her role as a civil servant, she is not only allowed but expected to engage in issues pertaining to her office and to express her opinions on them.

The duties and powers of the attorney general are not codified in law but rather are based on precedent and previous court rulings.

“There is no law that in any way defines what her role is as a government official. Her position is completely generalized,” attorney Avraham Shalev, a researcher at the Kohelet Policy Forum, told JNS. The role of the attorney general began as a legal adviser to the executive branch. (The Hebrew title translates directly as “legal adviser to the government.”) However, following a Supreme Court ruling in 1993, the decisions of the attorney general and the attorney general’s subordinate legal advisers became legally binding.

The role of the attorney general became central to the debate over Israel’s judicial reforms following Baharav-Miara’s decision to prevent Prime Minister Netanyahu from publicly discussing the proposed overhaul. Many experts saw this as a demonstration of the unique level of power held by her office.

“The attorney general of Israel is a singular figure in democratic politics. In most countries such as Canada or the U.S., the attorney general is a political role subservient to the executive and the party system, but in Israel, she is a juggernaut transcending law or branch of government. She is her own fourth branch of government,” Shalev said. “Her gag order really underscored the reason the judicial reform is being proposed.”

Since the gag order was issued, a number of the attorney general’s decisions have drawn criticism from legal experts. Two weeks ago, Baharav-Miara intervened in National Security Minister Itamar Ben-Gvir’s decision to remove the Tel Aviv Police chief from his post. She did not present a legal basis for her action.

Shalev explained that the unique legally binding nature of her decisions removes the need to meet the burden of legal justification from the attorney general.

Unlimited power

“Due to the binding nature of the AG’s decision, she is essentially vested with unlimited power. She can say something is illegal because the court would rule it illegal and if it goes to court they can say it’s illegal because the AG said it’s illegal,” he said.

“It is a completely circular situation and all the power that can be wielded by the court can essentially be concentrated into the role of the attorney general,” Shalev continued. “With a court at least you have the civil procedure, you can bring argument or evidence, and you have the right to make your case. With the attorney general, there is no such thing. She is the judge the jury, the prosecution and the defendant all rolled up in one.”

Eitan Levontin, a legal scholar at the Hebrew University of Jerusalem, agrees regarding the overpowered nature of the Israeli attorney general.

“The legal situation in Israel is not a minority opinion but rather a single opinion, and it seems to me that a chasm—not just a disagreement—lies between it and the legal situation in any comparable country,” Levontin said.

According to Shalev, the office of the attorney general has been increasingly active in Israeli politics, and more and more often has exercised arbitrary power. “In the past few years, we have seen an increase in the engagement of the attorney general in government, and most times on the bases of ‘reasonableness,’ which is a very ambiguous argument.”

The “reasonableness” argument refers to a principle in Israel’s legal system, first used in a court case in 1981 by then-Supreme Court Justice Aharon Barak. allowing courts to overturn government decisions on the basis that “they are unreasonable” as defined by the court or in this case the attorney general.

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