It was expected, yet it seems that even in this sector the escalation was faster than expected. Since the new government was formed, the conflicts between it and the legal adviser to the government appointed by the previous government are getting worse. Gali Beharev-Miara refused to defend the appointment of Aryeh Deri as minister (an appointment that was indeed invalidated by the High Court), criticized the moves by ShaiThe justice system led by the government is in shambles, and the peak seemed to be in its direct clashes with the prime minister: the reports that she is considering taking him to prison (which were denied) and the ban she imposed on him to engage in the same legal reform.
● Ninth week in a row: the protest against the revolution in the judicial system continues
● Arel Segal’s monologue revealed a disturbing truth: Israeli society is more divided than ever and this is how it looks on the ground
“I want to believe and hope that maybe she will come to her senses and maybe the legal advisor will nevertheless understand that her job is not to fail the government but to assist it and advise it,” Justice Minister Yariv Levin replied last week to the question of whether the government intends to fire the ombudsman on the grounds The events mentioned here. A statement that some people also found in it a note of threat. His colleague in the government, the Minister of Communications, Shlomo Karai, was more decisive and blunt. “My position is that (the ombudsman) should be fired. The question is how and when.”
The question that Karai mentioned is not as simple as it might seem. Can the Minister of Justice or the government indeed fire the legal advisor to the government just because they are not satisfied with the positions she presents? And what conditions must they meet for that? The watershed regarding the status of the Attorney General is the “Bar-on Hebron case” from 1997. The first government headed by Binyamin Netanyahu then requested to appoint Roni Bar-On as its legal advisor, a move that, according to an investigation by journalist Ila Hasson, was part of a deal with Shas: Bar-On, the investigation claims, was supposed to rescue Aryeh Deri from the ongoing criminal proceedings against him, and in return Shas was supposed to support the withdrawal of IDF forces from the Palestinian areas of Hebron, a move Israel committed to in the Oslo Accords (the police even recommended filing charges in the case, but it was finally closed).
The harsh public criticism of the move led to Ber-On resigning from his position within two days, but also to the establishment of a committee headed by the retired Supreme Court President, Meir Shamgar. The Shamgar Committee was established by the Netanyahu government, and submitted its recommendations back in its time, but who turned them into a government decision Binding – Resolution number 2274 – is the government of Ehud Barak, which followed it. The decision is the one that first regulated the manner of appointing the Ombudsman, and also the way of his dismissal, and in principle the rules that appear in it are still valid today.
The move has to go through a search committee
So what was determined there that is relevant to our case? The decision states that there are four grounds for terminating the term of office of the Attorney General: if there are substantial and prolonged disagreements between the government and the Attorney General, which create a situation that prevents effective cooperation; If the ombudsman did an act that is not appropriate for his position; if the ombudsman is no longer qualified to perform his duties; or if a criminal investigation is underway against him.
It is easy to see that the first section we mentioned is the one that may be the most relevant for the current government. But what should such a procedure look like? And who will define what are substantial and prolonged disagreements? First, as stipulated in the government decision we mentioned, if the government wishes to fire the ombudsman, the Minister of Justice must contact the committee that was established to appoint her. “The Supreme Court with the consent of the Minister of Justice.
Benefactors in the current affairs field may remember that the committee that appointed Beharve-Miara in 2021 is the Grunis Committee, headed by retired Supreme Court President Asher Grunis. Along with him on the committee, Prof. Ron Shapira (representative of the law faculties) and Attorney Tami Ullman (representative of the Bar Association) also sit on the committee. The committee is also supposed to have two members appointed by the politicians: an MK elected by the Constitution Committee, and a former Minister of Justice or a former ombudsman appointed by the government.
After the Minister of Justice’s appeal, the committee will summon the ombudsman for a hearing, and formulate its recommendation. And what if this committee, where the coalition does not have a majority, does not accept the recommendation of the Minister of Justice to fire the ombudsman – a development that does not seem impossible? Here, of course, things will start to get complicated.
Although the High Court of Justice has ruled in the past that even in the case where an advisory committee is used, the party to which the final decision rests must “exercise independent judgment”, but in another of its rulings it was also determined that “the conclusions of a tracing committee… have special weight”, and that “only if there is reason Essentially speaking, the appointing party may deviate from its conclusions.” That is, although the authority to decide on the question of firing the ombudsman rests with the government, the court recognized the great weight of the committee’s recommendation when exercising judicial review of a decision.
Of course, we have no way of knowing what the High Court will rule in such a case, but let’s continue for a moment with the unfolding of the hypothetical plot. What if the High Court determines that the government cannot fire the prosecutor in a case where the search committee advised it not to do so? This is also not required To be the end of the verse. After all, the rules we detailed here are based on a government decision from 2000, and there is no doubt that a government can change or cancel decisions of previous governments, and thus change the way to appoint and fire an ombudsman. According to Dr. Guy Luria of the Israel Democracy Institute, even if the government cancels the same decision from 2000 and replaces it with another procedure, the move will still be subject to the rules of administrative law, so that “the discretion underlying such a decision” will of course have to pass the BAG test. C. That is, if the series of hypothetical developments that we have presented here materializes in reality, it is not impossible that we will see new precedents set by the High Court of Justice.
By the way, in Israel there is a precedent for the dismissal of the Attorney General. In 1986, against the background of disagreements with the government regarding the handling of the “Line 300 affair”, Ombudsman Yitzhak Zamir was dismissed in a lightning decision that was unanimously approved by the ministers. can be concluded about the current situation.
Fire the commissioner? It’s easy
And what about the dismissal of a Commissioner? Anyone who heard this week the implicit threat sent by MK Zvika Vogel, a member of the party of National Security Minister Itamar Ben Gabir, towards Commissioner Kobi Shabtai, could have understood that such an attempt may also come in the not-so-distant future. Far from it. “We didn’t come here to oust or kick people out,” noted MK Vogel, “but if in the end (the Commissioner)… won’t be ready to get used to the new style, then there is no choice, in these separate cases.”
Here, seemingly, the procedure should be simpler. According to Dr. Assaf Shapira from the Israel Democracy Institute, since the government appoints the Commissioner, it is also authorized to fire him. But even in this appointment process a committee is involved – the Advisory Committee for Senior Appointments in the Civil Service. Does she also have a part in the dismissal procedure? This is also virgin ground, and according to Dr. Shapira “it is an interpretive question”, because “the issue has never been brought to a legal decision. On the one hand,” he says, “the High Court did recognize the importance of the committee in the appointment process, but on the other hand, the purpose of the committee is to examine the purity of the candidate’s character – and this question is less relevant to the issue of termination of office.” In addition, according to him, “since in the case of the commissioner it was not officially determined that the committee has a role in the dismissal procedure, it is more likely that it will not be given a role.”
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