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Israeli attorney general: Netanyahu violating conflict of interest deal by weighing in on reforms

Gali Baharav-Miara contends that the Israeli premier’s decision to wade into the process of reforming the judiciary is “completely illegal.”

Israeli Prime Minister Benjamin Netanyahu at the weekly cabinet meeting in Jerusalem, Feb. 12, 2023. Photo by Amos Ben-Gershom/GPO.
Israeli Prime Minister Benjamin Netanyahu at the weekly cabinet meeting in Jerusalem, Feb. 12, 2023. Photo by Amos Ben-Gershom/GPO.

Israeli Attorney General Gali Baharav-Miara on Friday characterized as “completely illegal” Prime Minister Benjamin Netanyahu’s wading into efforts to reform the judiciary, claiming his doing so violates the conflict-of-interest agreement allowing him to govern while his trial on corruption charges is ongoing.

“In your speech last night, you referred to proposals regarding the judicial system, and in particular to the composition of the committee for the appointment of judges, and announced that you are now directly involved in these initiatives,” Baharav-Miara wrote in a letter to Netanyahu.

“In doing so, you violated the ruling of the Supreme Court that a prime minister accused of crimes must refrain from actions giving rise to reasonable fear of a conflict of interest between your personal interests relating to the proceedings and your role as premier. Your statement last night and any further actions by you that violate that agreement are completely illegal,” she added.

The 2020 agreement prevents Netanyahu from making senior law enforcement and judicial appointments or involving himself in associated legislative processes that could influence the outcome of his trial. However, the Knesset earlier Thursday passed a law barring the Supreme Court from declaring a sitting premier unfit to serve and thus forcing him to take a leave of absence.

Netanyahu on Thursday night addressed the nation amid mass civil disobedience aimed at thwarting the judicial reforms, saying that he would intervene to make them more balanced, but adding that a law changing the makeup of the committee that selects justices would be passed this coming week as planned.

“I say this evening: I believe that it is possible to enact a reform that will answer both sides, a reform that will restore the proper balance between the authorities and, on the other hand, safeguard, and I say beyond that, not just safeguard but ensure the individual rights of every citizen in the country,” said Netanyahu.

“Now, I would like to answer a main concern that has been raised by the other side. I know that there is concern over a sweeping and unrestricted ‘override clause’ that would lead to a small Knesset majority being able to invalidate any court decision. I want to tell you clearly—this will not happen.

“On the contrary, we intend, and I intend, to anchor in law individual rights. We will ensure the basic rights of every Israeli citizen—Jews and non-Jews, secular and religious, women, the LGBTQ sector, everyone—without exception. All legislation will be bound by these principles. I am not saying this in the abstract; we intend to submit explicit legislation on this issue. I will personally see to it,” continued the premier.

“Unfortunately, until today, my hands have been tied. We reached the absurdity that if I had entered this event, as my position requires, they threatened to compel me to take a leave of absence, which would nullify the results of the election and the will of millions of citizens. This is an absurdity that cannot be in a proper democracy.

“Therefore, this evening, I announce to you, my friends, citizens of Israel, no more. I am entering the arena. I am laying aside any other consideration, for our people, and for our country, I will do everything in my power to find a solution,” said Netanyahu.

With respect to the proposed law to change how judges are selected, Netanyahu noted that, “In all democracies, including in the U.S., it is the representatives of the people who select judges. There are hardly any exceptions to this, very few. Then the U.S. is not a democracy? New Zealand is not a democracy? Canada is not a democracy?”

Baharav-Miara in February instructed Netanyahu to not involve himself in the government’s reform program, writing that her opinion applies to “giving direct or indirect guidance through other parties, as far as the promotion of the [judicial reform] initiatives are concerned.

“The application of the limitations established by the High Court of Justice ruling leads to the general conclusion that you must refrain in your role as prime minister from taking part in initiatives touching on the legal system, in the framework of the process termed ‘legal reform,’ ” stated her letter, referring to the Supreme Court’s May 2020 decision that Netanyahu could serve as prime minister despite the cases against him, with the provision that he avoid conflicts of interest pertaining to those cases in the performance of his duties.

‘Reject and condemn incitement and provocation’

Following Netanyahu’s speech, a source close to him was quoted by Israeli media as saying that the premier rejects Baharav-Miara’s position.

“Every sane person understands that at this time of national crisis, the prime minister must act to try to establish a broad consensus, to prevent violence and to uphold law and order and the daily functioning of the state,” said the official.

“The prime minister did not violate any Supreme Court ruling or conflict-of-interest agreement, as his announcement [on Thursday] has no bearing on his personal affairs. The premier has already informed the Supreme Court that no new judges selected by the committee will handle his cases,” added the source.

Local media reported on Friday that it was unlikely the Supreme Court would force Netanyahu to recluse himself at this stage, given the importance of the issue and when considering the civil unrest taking place across the nation.

On this point, Netanyahu noted on Thursday that he was elected in November by the people precisely to govern and navigate the country through trying times.

“Several months ago, as soon as the results of the elections became known, I said: I intend to be the prime minister of all citizens of Israel. I meant it then and I also mean it today,” said Netanyahu.

“We have one country and we must do everything to defend it from external threats, and from irreparable internal rifts. We cannot allow any disagreement, as sharp as it may be, to endanger our common future. Not only must we reject violence and hooliganism, we must also reject and condemn incitement and provocation.

“Opponents of the reform are not traitors; supporters of the reform are not fascists. The overwhelming majority of the citizens of Israel, from across the political spectrum, love our country and want to maintain our democracy,” he said.

“But since there are those who have arrogated democracy to themselves, this evening I would like to say a few words about democracy. True, we have differences of opinion. Supporters of the reform think there is no true democracy here and what endangers democracy is an all-powerful Supreme Court that delves into everything and, in effect, runs the country. On the other hand, opponents of the reform think that what endangers democracy is the Knesset and the government acting without brakes or restraints, which will infringe on individual rights.

“A proper democratic regime must deal with both of these issues. It must ensure majority rule and it must also safeguard individual rights. In order to ensure this, and in order to prevent a rift in the nation, the judicial reform for democracy must meet both of these basic needs. In order to prevent a rift in the nation, each side must take seriously the claims and concerns of the other side—and I would like to do that now,” concluded Netanyahu.

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