High Court gives government green light to convene new panel on firing attorney general

The High Court of Justice denied requests for an interim order to freeze the government’s new process for firing the attorney general Sunday, staving off a head-on confrontation with the ruling coalition as it seeks to sack Attorney General Gali Baharav-Miara.

The decision by Judge Noam Sohlberg came hours after Justice Minister Yariv Levin and Diaspora Affairs Minister Amichai Chikli filed a notice to the court asking it to reject petitions against the new procedure and implied that the coalition could ignore the court if it ruled against it on the matter.

With the court hurdle lowered for the time being, a new five-member ministerial committee tasked with recommending to the government whether or not to fire Baharav-Miara will be able to convene Monday as planned.

The committee has summoned Baharav-Miara to the hearing, but it is not clear if she plans to attend.

Sohlberg’s decision to not intervene was procedural rather than based on the merits of the arguments. Because the new committee has yet to make a recommendation and the government has yet to hold a vote on whether or not to fire Baharav-Miara, he ruled, there was not yet a decision to issue an injunction against.

That means petitioners can refile their objections to the court should the committee indeed recommend Baharav-Miara’s firing, as it is widely expected to do.

The government and the attorney general have been in conflict since the government was sworn in at the end of 2022, with the government accusing her of serially thwarting its policies and actions, and Baharav-Miara — who was appointed by the previous government — accusing the government of acting unlawfully and advancing unconstitutional legislation.

In March, the government set in motion the process of firing the attorney general under a system established in 2000. But in June, after failing to set in motion the process of firing the attorney general by established procedures, the cabinet passed a resolution establishing a new five-member ministerial committee that could trigger the process, headed by Chikli.

Government watchdog groups immediately filed petitions against the cabinet resolution, arguing that it unlawfully changes the method of dismissal after already embarking on the original process, and requesting interim orders from the court to freeze all aspects of the new process pending a final ruling.

The form of the notice submitted by Chikli and Levin prior to Sohlberg’s ruling was highly unusual, since it was not a formal legal response to the petitions, and was not written by a lawyer hired by the government but rather by the ministers themselves.

In their notice, Levin and Chikli did not address the key legal arguments against the new method for firing an attorney general, but instead, accused Baharav-Miara of “systematic” opposition to government policies due to her “personal and political positions,” and asserted that she should have resigned when the government issued a no-confidence statement against her earlier this year.

The government and the attorney general have been in conflict since the government was sworn in at the end of 2022, with the government accusing her of serially thwarting its policies and actions, and Baharav-Miara — who was appointed by the previous government — accusing the government of acting unlawfully and advancing unconstitutional legislation.

“The government is no longer willing to reconcile itself with a reality in which it is systematically and unprecedentedly denied the legal advice and representation that it deserves,” wrote Levin and Chikli in their statement to the court on Sunday.

They argued that the petitions against the new system for firing an attorney general “should be rejected outright,” saying that a ruling against the government would “silence and mortally harm government work” and “contradict the essence of democracy.”

This, the ministers wrote, “would be a totally unjustified decree that cannot be met,” implying the government could choose not to abide by such a ruling.

Levin and Chikli argued that after the government issued a statement of no-confidence in Baharav-Miara in March, she should have either resigned or “at least act to correct her ways and improve the manner in which she works with the government.”

But they said that the attorney general’s “open contempt for the government and its minister” had only gotten worse since then, as well as her “systematic actions against the policies of the government.”

Under these circumstances, the minister continued, “it would be unthinkable” for the court to attempt to force the government to leave Baharav-Miara in place “based on procedural reasons of one type or another that have no basis in law,” and warned that such a decision would have “severe implications.”

The new ministerial committee is scheduled to hold a dismissal hearing for Baharav-Miara on Monday.

The Movement for Quality Government in Israel, one of the petitioners against June’s cabinet resolution, said Sunday that Levin and Chikli’s response failed to present “real legal justification” for changing the attorney general dismissal process, and claimed it amounted to an admission of the “weakness” of the government’s case.

“A government with an unprecedented number of members under criminal investigation must not be allowed to continue the destructive process of ousting the country’s most senior gatekeeper,” MQG added in reference to the attorney general’s role as head of the prosecution service.

“The court must stand guard and save the rule of law from a move aimed at the complete politicization of the law enforcement system,” it said.