Bar’s allegations against Netanyahu have raised the risk of a constitutional crisis

The incendiary allegations made by Shin Bet chief Ronen Bar against Prime Minister Benjamin Netanyahu in his affidavit to the High Court of Justice earlier this week have greatly complicated an already highly combustible situation for the court, and now threaten to plunge Israel into deep constitutional strife.

While the court initially seemed to be content with remedying procedural problems with the government’s decision to fire Bar, the Shin Bet chief’s accusations that the decision to dismiss him was made due to Netanyahu’s personal and political concerns now threatens to send the country into a tailspin.

Bar was fired by the government, on Netanyahu’s recommendation, on March 21, but government watchdog groups and subsequently Bar himself alleged he was dismissed not for professional reasons but due to his defiance of the prime minister on several key issues.

Now that Bar has backed up his initial claims with documentation and evidence in his affidavit to the High Court, it will be far harder for the court to avoid ruling on the substantive issues of the case, potentially bringing the government and judiciary into direct conflict.

The petitions against the government decision to fire Bar back in March — the framework within which Bar filed his affidavit — had already given rise to threats of a standoff between the judiciary and the government.

The latter claims that under the law it has full authority to hire and fire the head of the Shin Bet, and that the court has no scope for intervention in the executive’s prerogative, while the legal establishment insists such authority is nevertheless subject to laws regulating the proper execution of administrative decisions.

Cabinet ministers threatened to ignore or work around any possible court ruling that Bar’s dismissal was not lawful even before the court hearing over the petitions on April 8. And the behavior of some ministers in recent days could already be considered to be in defiance of the court’s interim order from March 21.

The court froze Bar’s dismissal and told the government it could not change its working relationship with the Shin Bet head until a final ruling. Despite this, Finance Minister Bezalel Smotrich threatened not to attend security cabinet meetings if Bar is present, refused to allow him to speak at such a meeting, and walked out when he was finally permitted to do so.

Lowering the bar

The petitions that were filed by watchdog groups against the decision to fire Bar back in March alleged that the Shin Bet chief was dismissed due to personal and political motives on the part of Netanyahu, and that his firing also suffered from severe procedural problems.

In the April 8 court hearing over the petitions, the High Court justices appeared to be mostly focused on the procedural problems with how the cabinet went about firing Bar, and suggested the government and the attorney general’s office come to an agreement over how to remedy those problems.

The court’s deadline for such a compromise expired, however, on April 20. Although the High Court could continue its efforts to foster an agreement between the sides after a hearing on Bar’s affidavit, and a response by Netanyahu should he decide to submit one, it would appear that an outcome other than a final ruling is increasingly unlikely.

Bar’s explosive claims in his affidavit were that Netanyahu’s dissatisfaction with his job performance was not based on professional concerns but rather on Bar’s refusal to carry out what the Shin Bet chief described to be the unlawful use of his rank and authorities for the prime minister’s personal and political expediencies.

Specifically, Bar accused Netanyahu of pressuring him to help the prime minister postpone his testimony in his criminal trial against Bar’s professional opinion, and of asking him to use the Shin Bet to act against anti-government activists involved in legitimate political protest.

Bar insisted that both requests were unlawful and refused to carry them out, and alleged that this refusal to accede to Netanyahu’s demands, as well as his approval of criminal investigations into the prime minister’s close aides, is what caused Netanyahu to fire him.

During the April 8 hearing, it appeared the court wanted to merely remedy the procedural problems with firing Bar, by having the government request the input of the advisory committee which appointed him, ultimately in the expectation that it would approve Bar’s dismissal.

But the new information provided by Bar now makes it far harder, if not impossible, for the court to ignore the substantive claims of the petitions that Bar’s firing was politically and personally motivated, setting up a situation in which it may rule that his dismissal was unlawful.

Such a ruling would create huge political and legal problems given the insistence of multiple cabinet ministers that they will not work with Bar, and Netanyahu’s fierce hostility to the Shin Bet head.

Should the cabinet ignore a court decision reversing Bar’s dismissal it would plunge Israel into a constitutional crisis, where it is unclear to state agencies and officials which branch of government to listen to, in this case the judiciary or the executive.

Who would the Shin Bet agency, the police, the Attorney General’s Office, the State Attorney’s Office, and all other government departments consider to be in charge of the Shin Bet in such a situation?

Relieving the pressure

Are there any paths by which such a meltdown can be avoided?

The first scenario is if Netanyahu manages to sufficiently undermine Bar’s allegations in his own affidavit to the court in response to Bar’s, which the court invited the prime minister to submit.

If Netanyahu manages to persuade the court with his own documentation and evidence that Bar’s allegations that he fired him for illegitimate reasons are false, then the court could revert back to dealing with the procedural problems of the case and resolving it without undue fuss.

It is unclear, however, whether Netanyahu will even file his own affidavit, much less be able to convince the court that Bar’s allegations are false.

If the prime minister decides not to counter Bar’s accusations, the court will essentially take the Shin Bet chief’s statements as fact, making Netanyahu’s situation and the government’s position even worse.

The other path that could pull the chestnuts out of the fire for the Hight Court is if Bar announces he is resigning within a short time frame.

Bar stated in his affidavit that he will soon announce a date for his resignation, while it emerged on Tuesday that he has made comments to the effect that he will resign by May 15.

If Bar does resign by that date, the High Court will be able to avoid the issue entirely. It could issue a decision, distinct from a final ruling, writing that the petitions are now moot and, if it wishes, add some comments about the substantive concerns behind the case.

If Bar insists on staying put for several more months, however, it would make it far more difficult for the court to avoid making a ruling, given the critical importance of the position of Shin Bet chief for the country’s security, especially at a time of war.

And although the court might have wished to avoid making such a ruling, it seems highly doubtful it would shy away from reversing the decision if it believes Bar’s accusations to be true, given the likely negative impact that could have on the independence of all future Shin Bet chiefs.

The High Court under former president Esther Hayut struck down in an unprecedented manner an amendment to a Basic Law this government passed which it believed undermined democracy, while the court under Hayut’s successor Uzi Vogelman defied Justice Minister Yariv Levin and his refusal to appoint a new court president.

Would the court president installed as a result of that decision, Isaac Amit, back down in the Bar case in the face of the government’s threats?

It seems unlikely.