Ronen Bar affair shows widening chaos as state institutions face coalition pressure

The decision by Shin Bet chief Ronen Bar to resign his post on Monday, five weeks after he was fired by the cabinet, has seemingly, but not definitively, spared the country a ruinous fight between the government and the judiciary.

Petitions filed against the decision to dismiss him will likely be removed from the High Court’s docket, albeit with the judges perhaps rapping the government across the knuckles with a few choice words about the importance of the professional independence of the Shin Bet head, and indeed of all those who hold public office.

But although the proverbial chestnuts have been plucked from the fire in the Ronen Bar affair, the battle over his dismissal, its basis and its legality has highlighted deepening institutional chaos as a result of the government’s relentless efforts to overhaul and assert greater influence over a multitude of key state institutions.

The havoc this has engendered has been uniquely showcased by Bar’s defenestration and the processes which were starting to unfold following the submission of affidavits, first by Bar and then by Prime Minister Benjamin Netanyahu, to the High Court.

Bar none

The petitions to the High Court against Bar’s dismissal in March by the cabinet — which voted unanimously in support of Netanyahu’s recommendation — asked the justices to reverse the Shin Bet chief’s firing based on procedural problems with how it was carried out, as well as substantive concerns that he was booted due to the personal and political expediencies of the prime minister.

Before Bar spared the justices by resigning, it had appeared likely that the court would try and avoid adjudicating those explosive substantive allegations, and would instead try to remedy the procedural problems by asking the government to consult with the Senior Appointments Advisory Committee, headed by retired Supreme Court Justice Asher Grunis.

Attorney General Gali Baharav-Miara had told the government it must consult with the advisory committee before firing Bar, but her advice was ignored, a running theme over the last two years.

The High Court indicated its displeasure with the government’s refusal to listen to the attorney general during an April 8 hearing on the Bar petitions, and strongly suggested that the government consult the advisory committee as part of a potential compromise.

This consultation, however, would have been extremely difficult to carry out, due to the government’s attempts to overhaul another state institution: the Civil Service Commission.

One of the four members of the advisory committee must, by law, be the Civil Service commissioner. But there is no civil service commissioner at present, because the government has tried to change the way that role is appointed, in another step to concentrate power in its hands.

In August last year, the government passed a cabinet resolution allowing Netanyahu to directly nominate the next civil service commissioner, rather than using a search committee, a measure which would make it easier to appoint a candidate who, although favored by the prime minister for whatever reason, might be unqualified.

The attorney general advised the government that such an appointments process risked turning the commissioner’s position into a political appointee, but the government ignored her, again, and approved the new process anyway.

That decision was promptly frozen by the High Court while it adjudicated petitions on the issue, meaning the position of commissioner has been vacant since the previous incumbent retired in December.

Although a ruling requiring that the government consult the advisory committee had appeared to be the High Court’s preferred way of dealing with Bar’s dismissal before he resigned, it was therefore extremely unclear how that committee could be convened because of the fight, initiated by the government, over the Civil Service commissioner.

Unprecedented action

But even if that committee could have been convened, the unprecedented nature of the government’s behavior towards the head of the Shin Bet made it unclear how the panel could have reviewed the decision.

A cabinet resolution from 2018 determined that the advisory committee must be consulted for its recommendation if the government wants to fire any of seven senior office holders, one of whom is the Shin Bet chief. (The other six are the IDF chief of staff, Israel Police commissioner, Mossad chief, Israel Prison Service head, and the governor and deputy governor of the Bank of Israel; none of the seven has even previously been fired.) But that process is supposed to take place before the decision to dismiss is taken, not afterwards.

The 2018 cabinet decision empowers the committee to issue a recommendation as to the legitimacy of the government’s intent to fire the official in question. It does not provide the committee with the analytical tools to review the decision after it has been made.

What Grunis would have made of the situation is highly uncertain, given the questionable manner in which Bar was fired and the unprecedented situation in which the committee would have found itself.

Supreme indifference

The government’s fury with, and hostility to, state institutions is also relevant when it comes to why the High Court was apparently anxious to rule only on the procedural problems with Bar’s dismissal, and not on the substantive question of whether he was fired for political reasons.

At the very outset of the government’s tenure at the end of December 2022, it launched an all-out effort to constrain the judiciary and limit the checks the Supreme Court provides to executive and legislative power.

Justice Minister Yariv Levin on January 4, 2023, unveiled planned legislation that would have crippled the Supreme Court’s power of judicial review over legislation, crimped its ability to review government decisions, and vastly increased the government’s power over judicial appointments and thus the judiciary itself.

When that planned package of legislation engendered widespread national controversy, and after it was largely frozen following Hamas’s October 7, 2023 invasion and massacre, one part of the package — slightly watered-down legislation which nonetheless greatly increased political influence over judicial appointments — was passed into law last month.

At the same time, the government has lambasted the High Court for every decision it has made against the government, arguing that the justices are ostensibly acting “against the will of the people,” with cabinet ministers and coalition issuing numerous threats to neuter the court.

The issue of Bar’s dismissal became especially fraught due to the government’s position that since the law grants it the power to hire and fire the head of the Shin Bet, the High Court has no right to intervene.

Several cabinet ministers threatened to ignore or work around a potential court ruling that Bar’s dismissal was unlawful, including Finance Minister Bezalel Smotrich, who has already taken steps down that path by essentially boycotting Bar.

This defied the High Court’s order instructing the government not to change its working relationship with the Shin Bet chief while the case on his dismissal was still before the court.

Such defiance could already be considered a low-level constitutional crisis, where one branch of government refuses to listen to the other, something which, if it exploded into a full-scale standoff, would plunge the country into legal anarchy.

Hebrew media reported on Sunday night that Netanyahu had told his cabinet ministers that if the court were to annul the decision to fire Bar, the cabinet would deliberate on whether or not to obey the court’s order.

Such a threat brought Israel to a state of affairs where the government was apparently willing to consider disregarding the very foundation of the rule of law: court rulings.

Even if that report was based on a leak designed to “merely” intimidate the court, that too is instructive as regards the government’s attitude and relationship with the foundational institutions of the Israeli state, not to mention the slippery-slope effect of rhetoric transforming into pressure for action.

It is hardly surprising that in such a situation, the court was inclined to hope that the advisory committee could find a way to sign off on Bar’s dismissal, rather than risk the possibility of a full-blown constitutional crisis.

Everything everywhere all at once

The current government, from its very inception, has sought to shake off the shackles of restraint that the state’s key democratic institutions and public officials impose on the executive branch, and exert greater control over them, including the Supreme Court, the attorney general, and the police.

The timing of the decision to fire Bar amid the Shin Bet’s ongoing investigations into several of Netanyahu’s close aides, furthermore, appeared to demonstrate an intent to assert influence, as well, over the domestic security agency, an institution that also plays a key role in enforcing the rule of law.

At the same time, the government has sought to increase its control over institutions which are loci of power and authority, such as the Civil Service, the public broadcaster, the ombudsman for judges and others.

As the imbroglio over Bar’s dismissal has demonstrated, when so many institutions are targeted in this manner, the internal mechanisms of the state can begin to stutter, as the consequences of an attempt to overhaul one agency, while shrugging off the authority of another, begin to impact a third.

The overhaul of these institutions is perhaps the primary goal of the current government, and one which it has made clear it intends to keep advancing come what may.

“There is one thing we must do, and that is to continue the great campaign and struggle to change not just the legal system, but rather to change the legal system, which will lead to deep change in all the state’s systems,” Justice Minister Levin stated just this week. “What was built here over decades will take time to dismantle.”