High Court rejects Ben Gvir’s effort to circumvent AG with private legal counsel

The national security minister had sought High Court’s permission to use alternate representation in legal motions against him, due to his ‘lack of faith’ in the attorney general

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

National Security Minister in Jerusalem for discussions with senior police officials ahead of a planned protest against the government's judicial overhaul legislation outside the Knesset, February 20, 2023. (Arie Leib Abrams/Flash90)
National Security Minister in Jerusalem for discussions with senior police officials ahead of a planned protest against the government's judicial overhaul legislation outside the Knesset, February 20, 2023. (Arie Leib Abrams/Flash90)

The High Court of Justice gave short shrift Tuesday to an attempt by National Security Minister Itamar Ben Gvir to go over the head of Attorney General Gali Baharav-Miara, and told him he must get her opinion on his request for independent counsel in legal motions against him before approaching the court.

In an escalating spat between the ultranationalist leader and the attorney general, Ben Gvir on Sunday demanded he be allowed independent counsel for petitions against legislation expanding his ministry’s powers over the police and against his decision to remove Tel Aviv District Police Commander Amichai Eshed from his post.

The minister, who leads the far-right Otzma Yehudit party, claimed he had lost faith in Baharav-Miara’s ability to faithfully represent his positions in such legal proceedings due to her decision to freeze Eshed’s removal from office, and asked either to be allowed to represent himself or to obtain private legal representation.

Baharav-Miara said in response that his request was too vague and that he must specify which petitions he seeks independent counsel for, and more fully explain his reasoning.

Instead, Ben Gvir filed a petition to the High Court on Monday asking it to authorize his request for private legal representation, citing his lack of faith in the attorney general’s attitude toward him.

On Tuesday, the High Court said in a one-line reply to his request that Ben Gvir “must first make his request to the attorney general, as is accepted practice.”

Attorney General Gali Baharav Miara speaks during a conference at the University of Haifa, December 15, 2022. (Shir Torem/Flash90)

The Attorney General’s Office almost always represents the government in legal proceedings against it or against legislation, and ministers must receive permission from that office to obtain independent counsel in a situation where the attorney general does not support the government’s position.

The petitions against Ben Gvir and his ministry challenge both the constitutionality of legislation passed in December, which expanded the power of the national security minister over the police, and Ben Gvir’s decision to remove Eshed from his command last week.

At an Otzma Yehudit Knesset faction meeting on Monday, Ben Gvir continued to fulminate against Baharav-Miara.

“It’s not just the outrageous behavior when, in an illegal step, she froze my decision without even talking to me! Without hearing the circumstances, without hearing the essence of the decision,” he fumed.

“It is also the harassment of the Otzma Yehudit faction in the Knesset,” Ben Gvir continued, complaining that the attorney general has flagged numerous pieces of legislation sponsored by the party as legally problematic, such as a bill to give IDF soldiers legal immunity from prosecution over actions they took while on active duty that might be deemed illegal under Israeli law.

“The time has come for the attorney general to understand: She is not meant to run the State of Israel. We were elected to run the country. She, according to her title, is an adviser. She needs to give advice, we need to govern,” he said. “That’s how it is in a democratic country.”

As well as heading the public prosecution service, the attorney general also serves as the chief legal counsel to the government and reviews government resolutions, administrative decisions, and government-backed legislation to determine their legality. Her title in Hebrew is “Legal Adviser to the Government.”

Baharav-Miara told Ben Gvir on Sunday: “The attorney general serves as the authorized interpreter of the law for the government, her [written] legal opinions are binding [on the government] and represent existing law, as long as a court has not determined otherwise.”

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