Legal Right or Government Caprice: Was Firing the Attorney General Lawful?

A Historic Dismissal and Legal Controversy

For the second time in its history, Israel's government has dismissed its attorney general, a move that marks the first such event in over four decades. This unprecedented decision has sparked intense legal and political debate, with far-reaching implications for the current coalition’s stability.

The dismissal of Attorney General Gali Baharav-Miara was approved by the cabinet in a unanimous vote, citing her repeated obstruction of government policies, appointments, and legislation on what were deemed to be political rather than professional grounds. However, the High Court of Justice quickly intervened, freezing the dismissal due to concerns about the legality of the procedure used to remove her.

At the heart of the controversy is the method the government employed to dismiss Baharav-Miara. Initially, the government sought the recommendation of a professional committee, as outlined in a 2000 cabinet resolution. However, it failed to assemble the required members, leading to the creation of a new committee composed entirely of government ministers. Critics argue that this change violated key principles of administrative law, while the government claims it had the right to modify the process.

The High Court's Concerns

Judge Noam Sohlberg, who oversaw the initial court procedures, has expressed reservations about the government’s approach. He suggested that the government should return to the original dismissal process, hinting that minor adjustments might be acceptable. His decision to delay the dismissal was influenced by the petitions filed against it, indicating that the court may rule in favor of the petitioners.

Sohlberg, known for his conservative views and advocacy of judicial restraint, appears skeptical of the government’s actions. His stance raises questions about whether the court will ultimately support the dismissal or require the government to follow the original procedure.

Government Authority and Legal Arguments

Legal adviser Ze’ev Lev, representing the Movement for Governance and Democracy, acknowledged that the court is likely to block the dismissal but argued that the government had the right to alter the process. According to Lev, the hiring and firing of the attorney general is governed by a 2000 government resolution, not by formal legislation. Therefore, he contends that the government can amend or replace previous resolutions as needed.

Lev conceded that the government’s approach was “foolish” but maintained that the changes should not invalidate the new process. He emphasized the government’s need for an attorney general who aligns with its policies and stressed that the attorney general should not indefinitely obstruct government functions.

Administrative Law and Constitutional Principles

Yaniv Roznai, a constitutional law professor at Reichman University, acknowledged the government’s authority to determine the hiring and firing process for the attorney general. However, he argued that the manner in which the government changed course during the original dismissal process violated key principles of administrative law. Specifically, he highlighted the importance of prospective decision-making rather than retrospective rule changes.

Roznai criticized the government for what he called “governmental caprice,” arguing that changing rules mid-process undermines the rule of law. He noted that these principles, though not formally codified, are rooted in case law and court rulings dating back to the establishment of the state.

The Broader Implications

Roznai also pointed to the broader context of the government’s efforts to reduce checks on its power. The attorney general plays a critical role in interpreting the law and ensuring government accountability. The 2000 resolution, based on recommendations from the Shamgar Commission, aimed to maintain the independence of the position by requiring at least three legal professionals on the appointment and dismissal committee.

The government’s actions, according to Roznai, signal a shift toward a more politically aligned attorney general, sending a message to legal advisers and civil servants that non-compliance could lead to removal from office.

The Attorney General’s Role

Lev strongly disputed these claims, asserting that Baharav-Miara has repeatedly blocked government decisions without proper justification. He cited a list of 60 government initiatives that she opposed, arguing that her actions have hindered the government’s ability to implement its agenda.

Lev pointed to several court rulings where Baharav-Miara lost cases, including those related to the appointment of media regulatory officials and civil service commissioners. In one instance, Judge Sohlberg sharply rebuked her for refusing to allow government representation in court, stating there was no legal basis for her stance.

However, others have noted that Baharav-Miara has won many of the cases she has brought before the High Court, including landmark decisions on judicial standards and the firing of Shin Bet officials. These victories suggest that her actions are not always driven by political motives.

A Populist Government?

Roznai argued that the government is populist and seeks to eliminate any constraints on its power. He claimed that the current administration wants an attorney general who acts as a “rubber stamp” rather than an independent gatekeeper.

The ongoing legal battle over the dismissal of Baharav-Miara reflects deeper tensions between the government and the judiciary, as well as concerns about the balance of power in Israeli governance. As the High Court deliberates, the outcome will have significant implications for the future of the attorney general’s role and the integrity of the legal system.