Claims restrictions harm 'freedom of expression of millions'

Netanyahu tells High Court he has no conflict of interest dealing with overhaul

PM says AG overreaching in preventing him from even discussing judicial reform, suggests it would be enough to bar him from process of appointing judges

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

Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)
Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)

Prime Minister Benjamin Netanyahu on Thursday rejected the attorney general’s position that, due to his ongoing criminal trial, he should be barred from any involvement in his government’s highly contentious judicial overhaul legislation, and argued that some members of the opposition are actively seeking his involvement in order to facilitate dialogue on the issue.

In a filing to the High Court of Justice, Netanyahu’s attorneys argued that there was no substantive conflict of interest for the prime minister relating to the overhaul, and that barring Netanyahu from involvement in the actual selection of judges would be sufficient to allay any concerns.

Last month, citing a conflict of interest arising from the prime minister’s ongoing trial on corruption charges, Attorney General Gali Baharav-Miara sent a letter to Netanyahu telling him he could not play a part in the radical reforms being advanced by Justice Minister Yariv Levin and Knesset Constitution, Law and Justice Committee Chairman MK Simcha Rothman.

The letter was sent in the wake of a petition to the High Court of Justice by the Movement for Quality Government in Israel demanding that a new conflict of interest agreement be drawn up for Netanyahu to replace the agreement he reached in 2020 with then-attorney general Avichai Mandelblit, early in the criminal proceedings against him.

Baharav-Miara has since insisted that Netanyahu not even speak about the reforms, publicly or privately, a position that President Isaac Herzog reportedly asked her to reconsider in order to facilitate negotiations toward a compromise on the contentious moves.

In Thursday’s filing, Netanyahu’s attorneys requested the court determine that Baharav-Miara’s position does not bind the prime minister, and said the level of conflict of interest facing the prime minister in dealing with the judicial reforms was slight.

Prime minister Benjamin Netanyahu (right) with Justice Minister Yariv Levin during a discussion and a vote in the Knesset plenum, February 22, 2023. (Yonatan Sindel/Flash90)

“Imposing restrictions on the prime minister, especially those that restrict his freedom of expression, harm the freedom of expression of the millions of citizens who voted for him in democratic elections just a few months ago,” wrote Netanyahu’s legal team in its submission to the High Court.

The prime minister’s lawyers said such restrictions harmed a fundamental value in a democratic regime, “especially when the reason for this harm is a theoretical and distant conflict of interest.”

They also argued that members of the opposition were specifically seeking Netanyahu’s involvement. The claim mirrored a report on Thursday by the Kan public broadcaster that said “senior officials” in MK Benny Gantz’s National Unity party have criticized Baharav-Miara’s decision to ban Netanyahu from discussing and dealing with the judicial overhaul program.

Netanyahu’s lawyers pointed out that the original 2020 conflict of interest agreement did not prohibit him from being involved with proposed changes to the Judicial Selection Committee, which the legislation being advanced by his government seeks to drastically alter.

They noted that the original agreement stipulated only that Netanyahu not express an opinion to members of the Judicial Selection Committee regarding candidates for judicial appointments.

As such, the prime minister’s legal team suggested a solution: Any judges appointed after the government’s judicial overhaul is enacted will not be allowed to be involved in Netanyahu’s criminal trial in the Jerusalem District Court, “including in proceedings directly related to his case.”

Benjamin Netanyahu arrives for a court hearing in his trial, at the District Court in Jerusalem on May 17, 2022. (Yonatan Sindel/Flash90)

It is unclear if this stipulation would also apply to an appeal to the Supreme Court, should Netanyahu be found guilty in the district court.

The prime minister’s lawyers also argued that Baharav-Miara was being “overly expansive” in her contention that his trial prevented him from involvement in the reforms to judicial review and the judicial test of reasonableness, and that her position was “so theoretical, speculative, and distant” that it did not meet the standard of a substantive conflict of interest.

“As with any administrative act, the restrictions established should be specific, proportionate and go only as far as necessary,” they wrote.

“A conflict of interest, to the extent that it exists, can be remedied in different and diverse ways, while the disqualification of an official from exercising his powers and acting within the framework of his legal and constitutional duties should be the last resort.”

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