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Opposing coalition moves, AG caught between government fealty and loyalty to the law
Gali Baharav-Miara has come out strongly against coalition legislation. Ministers say she should be faithfully representing them; she argues her duty goes further
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
It is no exaggeration to say that the acrimonious and bitter relationship between the current government and the attorney general is unparalleled in the annals of Israeli politics.
An infamous cabinet meeting back in July escalated what was an already highly hostile situation, with ministers taking turns denouncing Attorney General Gali Baharav-Miara to her face and calling for her to be fired or to resign.
Since then, things have only gotten worse.
The ruling coalition has become ever more frustrated with, and aggravated by, a series of decisions on critical issues by the attorney general in which she has not only refused to represent the coalition’s position in court but actively opposed its stance, sometimes in the most radical manner possible.
In July, the attorney general, whose role includes advising the government on legal matters and representing it in court, took the unprecedented step of calling on the High Court of Justice to strike down an amendment to Israel’s quasi-constitutional Basic Laws passed by the government. Then in September, she did it again.
As a result, she has faced the wrath of Justice Minister Yariv Levin in particular, who has described the working relationship as “impossible” (while admitting he could not fire her) and wrote a furious letter to her in late August objecting in the strongest terms to her repeated stances against the government, which he said left it without legal representation.
Baharav-Miara for her part insisted that she was providing the government with the best possible legal advice, even when she opposed the government, and said that her duty as the government’s lawyer had to be balanced by her commitment to Israeli law.
Questions over how to achieve that balance and whether Baharav-Miara’s approach does so have become another major pivot point in the ongoing battle over the judiciary’s relationship with legislative and executive powers.
The government insists that its attorney general faithfully lay out and defend its positions as a crucial functionary of the administration. But Baharav-Miara sees herself as a key legal guardian of the state, beholden not to a particular government but to the democratic underpinnings of Israel’s constitutional arrangement, which prevents her from supporting policies or even new legislation she believes violates those sacred protections.
The power of Israel’s attorney general
The attorney general in Israel wears several different hats each of which bears a large amount of power, although much of the authority invested in the post has come about not via legislation but by dint of tradition, court rulings and precedent.
The government’s head lawyer serves simultaneously as the head of the state’s prosecution arm, chief legal adviser to the government, its representative in legal proceedings in court, and also provides legal advice when the government and its ministries draft legislation.
In 1998, a state commission set up to examine the attorney general’s powers stipulated that those holding the position must also represent the public interest and protect existing law.
And as a result of the landmark “Pinhasi decision” of 1993 in which the High Court of Justice ruled that the “attorney-general is the authorized interpreter of the law for the executive branch,” the attorney general’s position is considered binding on the government.
This also means that if the attorney general opposes the government’s position, the government and its ministers must obtain his or her permission to obtain independent court representation.
On occasion, the various roles and obligations can collide with one another, as in when an attorney general disagrees with the government they serve over the legality of a move. This has led to various proposals over the years to split the job into two, though the idea has never managed to gain widespread traction.
But while arguments between the government and the attorney general are nothing new, never before have the two brawled so frequently and on matters of such existential weight.
In power for less than a year, Prime Minister Benjamin Netanyahu’s administration has clashed with the attorney general on numerous occasions, including over matters of policy and legislation.
The most high-profile struggles have seen Baharav-Miara oppose the government on issues surrounding government efforts to alter the judiciary, including government-backed legislation amending Basic Law: the Government to prevent the High Court or the attorney general from ordering the prime minister to recuse himself; the government’s law limiting use of the reasonableness doctrine, an amendment to Basic Law: The Judiciary and the only part of its judicial overhaul agenda it has passed into law; and the justice minister’s refusal to convene the critical Judicial Selection Committee, which appoints new judges.
In a letter Levin wrote to Baharav-Miara at the end of August, the justice minister denounced her for failing to represent the government’s position in court and for leaving the government without effective legal representation.
“This is another record level of disparaging treatment,” Levin fulminated, complaining that Baharav-Miara was “trampling my basic right as a litigant to receive fair representation in court in petitions against me.”
He also alleged that Baharav-Miara’s dealings with the current government were substantively more uncooperative than compared with her attitude toward the previous government, hinting at political bias on her behalf in light of the fact that she was appointed by previous justice minister and current opposition member MK Gideon Sa’ar (upon the recommendation of a public committee).
Baharav-Miara dismissed Levin’s criticism, insisting that it was her “professional” duty to “warn the government, any government, of steps which contravene the law,” concurrent with her task of “assist[ing] the government in achieving its policies within the boundaries of the law.”
What’s her job, again?
Guy Lurie, a legal expert at the liberal Israel Democracy Institute which has opposed much of the government’s judicial overhaul agenda, insists that although the attorney general is tasked with advising the government, “first and foremost she has a duty to uphold the law and defend the constitutional principles of state, including human rights.”
While the official name of the position in Hebrew translates to “legal adviser to the government,” that is misleading, according to Lurie. The attorney general’s loyalty must be “to the Government, with a capital G, as the institution, but not to a particular administration and its policies,” he said.
According to Lurie, when there is a conflict between a policy a government wishes to advance and the rule of law “she doesn’t have a choice in the matter” other than to state her professional opinion if she believes that policy to be illegal or unconstitutional.
“She needs to help a particular administration fulfill and obtain its policies, but under the law,” he stressed.
But not all experts agree that Baharav-Miara’s main job is upholding the law rather than acting as the government’s lawyer.
Prof. Moshe Cohen-Eliya, a lecturer in constitutional law at the College of Law and Business, said Baharav-Miara “doesn’t understand her job.”
“Yes, the attorney general needs to act as a brake [for the government], and express her interpretation of the law, but she cannot use this power to oppose again and again everything the government wants to do,” said the professor.
He charged that the attorney general’s 148-page response to petitions against the reasonableness law in which she called for the legislation to be struck down read “more like a petition against the government than an attorney general’s response.”
And he asserted that her opposition to the recusal law, another amendment to a Basic Law, was unnecessary. She could have reasonably argued that the legislation simply clarifies a certain ambiguity in the law as it previously stood, despite the manner in which the law appeared to be tailored for Netanyahu.
“The attorney general can use her ‘Red Card’ when absolutely necessary, but to use it so many times will erode goodwill with the government,” said Cohen-Eliya.
Attorney Ze’ev Lev of the Movement for Governability And Democracy, a conservative organization founded by judicial overhaul architect MK Simcha Rothman, agreed that rather than take a side, Baharav-Miara could find ways to defend the government’s position, and let the court decide what’s legal and constitutional and what’s not.
“We need a legal professional to be fighting for the elected government even if they think the policy in question is a bad idea,” said Lev.
Pointing to the Judicial Selection Committee issue, in which Levin has refused to convene the panel until he can change its composition through legislation, Lev asserted that the claims the justice minister is violating administrative law are theoretical and unproven, and as such there is ample room for the attorney general to defend his opinion.
Instead, Baharav-Miara was entering unprecedented territory by “systematically oppos[ing] the government”.
“You don’t need to agree with your client, but you do have to represent them,” he said. “The public who elected this government is not having its voice heard in court,” he added, though Baharav-Miara has allowed the government independent legal counsel in all the major clashes.
“The court is the gatekeeper, the other side has representation, and the government needs its own representation too.”
Two approaches for two governments?
Lurie also pushed back against the idea, propagated by Levin, that Baharav-Miara treats the current government differently than the previous one, essentially hinting at political bias. In fact, it is normal for the attorney general to raise legal concerns with cabinet ministers over their policies and for them to take such advice on board, he argued.
Speaking to The Times of Israel, an official in the Bennett-Lapid government made this very argument, saying that it is normal for the attorney general to raise concerns in initial conversations, and that “a reasonable government” would take such concerns into account and make the necessary changes to the policy or legislation to avoid an outright conflict.
The varied ideological makeup of the previous government forced it to shy away from far-reaching, highly controversial measures that the attorney general could have shot down.
In contrast, the current government is far more politically homogeneous and has shown an intense desire to alter some of Israel’s most fundamental constitutional arrangements, which have, naturally perhaps, set off the attorney general’s warning lights.
This legal whitewater ride appears set to continue, with Levin and Netanyahu intent on pushing forward with controversial legislation to change the composition of the Judicial Selection Committee in the Knesset’s winter session. Other highly divisive moves are in the pipeline too, including a planned bid by Communications Minister Shlomo Karhi to transfer regulation over Israel’s broadcast system to government control.
Firing Baharav-Miara would bring down a firestorm of protest against the government and would be a complex and difficult process. Levin has admitted as much and said he is not currently considering having her sacked.
The country is therefore likely to remain in an incredibly awkward position for the near future; with an attorney general caught between the law and the long arm of a government seeking radical changes across a broad range of legislative and policy arenas.
