With a ‘sword over its head,’ High Court may balk at reversing Ronen Bar’s dismissal
Shin Bet chief’s failures mean firing him would ordinarily not be controversial, but Qatargate probe may discomfit the court, prompt it to seek guarantees regarding successor
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
In the latest installment of the government’s battles with its senior civil servants, the High Court of Justice will hear petitions on Tuesday against one of the current administration’s most contentious decisions in recent months, its unanimous vote to fire the head of the Shin Bet domestic security agency Ronen Bar.
In firing Bar on March 21, Netanyahu claimed he had “lost faith” in the Shin Bet chief’s ability to do the job, but opposition parties and government watchdog groups filed a string of petitions to the High Court mere hours after he was dismissed, demanding the court reverse the decision, a position which the attorney general backed.
The petitioners argued that the prime minister had a clear conflict of interest in removing Bar from office since the Shin Bet is involved in the Qatargate investigation, in which close aides to Netanyahu are alleged to have conducted work promoting Qatar’s image in Israel while working for the prime minister.
But beyond the immediate arguments over the merits of the case, the dispute over Bar’s dismissal has again opened up the schism in the country between those supporting the coalition who believe the legal establishment is trying to replace the elected government with a “judicial dictatorship,” and those who believe the government, and Netanyahu in particular, is simply trying cast off any check or restraint on its use of power.
The depth of this animosity has been reflected in the harshness of the language used by both sides over Bar’s dismissal, with Yair Lapid accusing Netanyahu of “selling out” the government to Qatar and firing the Shin Bet chief because he was investigating the allegations.
At the same time, Justice Minister Yariv Levin has insisted that the government should essentially ignore the High Court, were it to rule against the decision to fire Bar, and simply refuse to work with him.
In short, the country is once again potentially on the path to a constitutional crisis, with one branch of government refusing to listen to the other.
The hearing is scheduled to begin on Tuesday morning at 9 a.m. and will be broadcast live on the Supreme Court’s website and the Judicial Authority’s YouTube channel.
What are the likely outcomes of the hearing, and what options does the court have to intervene over the affair, if it should wish to do so.
The petitions against Bar’s removal from office
The petitions against Bar’s dismissal largely focus on what they say is the prime minister’s conflict of interest in firing the Shin Bet head, and the agency’s participation in the Qatargate scandal.
Although Netanyahu is not himself a suspect, the petitioners allege that Netanyahu sought to block the investigation, which is also being conducted by the police, and install a more pliant Shin Bet chief.
Netanyahu’s decision to fire Bar was therefore tainted by ulterior motives and a conflict of interest, two legal principles which could invalidate an administrative decision.
Spy-fall: The government’s ‘loss of faith’ in Bar
In its response to these claims in the High Court, Netanyahu and the government argued first that the court cannot intervene on such a decision since appointing and firing the head of the Shin Bet is a security issue in which, by tradition and precedent, the court almost always declines to involve itself, on the grounds that it lacks expertise over such matters.
The primary argument is, however, that Netanyahu has had an “extended loss of professional and personal trust” in Bar, stemming from the Shin Bet’s failures to alert political office holders about a pending Hamas onslaught before October 7, as well as other points of contention, such as Bar’s publicly stated position that a state commission of inquiry should be established into the broad failures that enabled Hamas to stage its brutal assault and atrocities.
As such, they claim, the government and the prime minister cannot continue to effectively work with Bar, and forcing them to do so would harm the functioning of the Shin Bet and national security.
The responses to the petitions address the allegations of a conflict of interest only very briefly, arguing that the Qatargate investigation is, for the most part, being conducted by the police and continues apace, and adding that changing the head of the Shin Bet “will not influence even a little bit this investigation.”
How might the court act?
Dr. Ronit Levine-Schnur, a lecturer at Tel Aviv University’s Faculty of Law, said that the court may well be wary of intervening in Bar’s dismissal, given the politics involved, as well as the repeated threats against the court from the government and its supporters over numerous issues since the establishment of the current government.
“The sword is hanging over the court,” said Levine-Schnur. “It doesn’t really want to get involved because of the political nature of this issue and the ongoing attacks against the court.”
The three justices presiding over the case are Supreme Court President Isaac Amit, a liberal whose appointment the government fought tooth and nail; incoming deputy president Noam Sohlberg, a conservative; and Justice Daphne Barak Erez, another liberal.
Levine-Schnur pointed out that Bar himself had taken responsibility for failures leading up to and immediately before the October 7 attacks and said that he would resign as a result.
Without the issue of the Qatargate investigation, there would be little argument over firing Bar, Levine-Schnur asserted, given the nature of the intelligence failures he presided over.
But the investigation does make things more complicated for the court because of the appearance at the very least, of a conflict of interest inherent in firing a law enforcement agency chief who is investigating, if not Netanyahu himself, then his very close associates.
The debacle over Netanyahu’s announcement that he was appointing Vice Adm. (res.) Eli Sharvit to be the next head of the Shin Bet on March 31, followed just hours later by a decision to reverse that announcement seemingly because of opposition to Sharvit from within the prime minister’s own party, will only cause the High Court greater worry over the whole affair, said Levine-Schnur.
This is something she said the petitioners will likely point to in court as evidence that Netanyahu’s motives are indeed political and not professional.
Nevertheless, the court may try to come to a solution whereby it simply rules that the government must abide by the laws and norms of administrative law when hiring a new head of the Shin Bet, and that it base its considerations solely on professional considerations.
In this way, it would avoid a ruling which, as the petitioners argue, would entangle itself in the government’s personnel appointments and all of the politics that entails, while potentially ensuring that Bar’s successor is not, as the petitioners fear, appointed due to fealty to Netanyahu, but because of professional qualifications.
The court could also go further and require the government to make some form of statement to the effect that it will only make an appointment based on a professional basis, devoid of any political considerations or commitments of loyalty to the prime minister or the government.
Dr. Shaul Sharf, a lecturer in constitutional law at the Peres Academic Center, argued that the court has no scope for intervention since the 2002 Shin Bet law gives the government the explicit authority to hire and fire the head of the agency.
“This is not a bureaucratic state, it’s a democratic state. You can’t say that the government is subject to the head of the Shin Bet, that he’s a separate branch of the government,” insisted Sharf.
“He’s subject to the executive branch. It can’t be that there are officials in the executive who have power which is stronger than the government itself.”
Sharf dismissed the idea that the prime minister has a conflict of interest over Qatargate since he himself is not a suspect, and also rejected the notion that even if Netanyahu did have a conflict of interest, this could extend to the government, which is the body that actually made the decision to fire Bar.
But he described Amit and Barak-Erez as judicial “activists” and alleged that “the letter of the law and precedent doesn’t restrict them,” claiming that they could “invent new precedents or legal tools” to fit their political worldview.
“If the judges stick to the law and to precedent and don’t invent things out of nothing in accordance with their ideology, then the petitions need to be rejected,” he said.
Despite his criticism of the court, Sharf said it was possible the justices could come up with a solution where it does not overtly intervene, but instead orders that an existing office holder within the Shin Bet, such as a deputy or other senior official, be in charge of the Shin Bet’s role in the Qatargate investigation to circumvent the conflict of interest allegation by the petitioners.
“On a practical level, a government that doesn’t have proper relations with the Shin Bat chief is a catastrophe,” Sharf said, explaining why he did not believe the court could ultimately force the current administration to work with Bar.
“You can’t have a feud between these two, especially at a time of war.”
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