Constitutional crisis looms as gov’t & A-G commence legal battle over Shin Bet chief dismissal

The Israeli government argued that the court can’t force it to work with a Shin Bet chief in whom it has lost its trust, as the government and Attorney General Gali Baharav-Miara both submitted statements to the High Court regarding the dismissal of Shin Bet Chief Ronen Bar.

After the cabinet’s unanimous decision to fire Bar, the High Court issued a temporary injunction against the move after petitions by the opposition parties Yesh Atid, National Unity, Yisrael Beytenu, and The Democrats, in addition to several NGOs.

Their main argument is that the ongoing Shin Bet investigation of possible ties to Qatar by aides of Netanyahu creates a conflict of interest for the Prime Minister.

Netanyahu has said the investigation was launched to prevent Bar’s dismissal. In the government’s response to the court, it was argued that there was no conflict of interest since Netanyahu isn’t even a subject of the investigation, only some of his aides.

Furthermore, the government reiterated that it has the legal authority to relieve the director of the Shin Bet, the country’s domestic intelligence service, from his duties.

Conversely, it argued that the court has no authority to intervene in the decision due to its tradition of not interfering with security policy.

“Appropriating security authority and responsibility, and transferring it to the court, which lacks the tools to implement this security responsibility, would leave the country without a clear responsible [authority] for the peace and security of its citizens and soldiers,” the government argued.

Another argument stated that, based on precedents, the court can’t hear petitions by other public groups on behalf of someone who himself didn’t challenge the cabinet’s decision.

Since Bar refused to appear and defend himself before the cabinet decided to fire him and also hasn’t personally petitioned the court against the dismissal, the government argues that the court can’t hear the petitions.

Finally, the government highlighted that Bar himself supported its central claim that there was no trust between Netanyahu and the intelligence chief, pointing to the letter Bar published before the dismissal.

The court can’t force the government to work together with a Shin Bet director while both sides acknowledge the lack of trust, the government concluded.

Meanwhile, the government’s Attorney General Baharav-Miara, who is also subject to a dismissal process by the cabinet, argued against Bar’s dismissal.

In her response to the High Court, she asked that the injunction remain in place until the court hearing, set for April 8.

“The government's decision is flawed in fundamental ways that go to the heart of the administrative action, both in terms of the decision-making process” and the “discretion exercised in making the decision,” she argued.

She also emphasized that in the meantime, the court should prevent the government from holding interviews for a new director, or nominating an acting director, in order to prevent this creating “facts on the ground” which “would harm the stability of the organizational hierarchy of the Shin Bet.”

“It is clear that once a new head of the Shin Bet is appointed, it will be very difficult to reverse the situation, should the petitions ultimately succeed.”

Baharav-Miara noted that the questions raised by the petitions are “precedential and have significant implications for the tenure and role of senior officials in the security services, law enforcement, and public service in general, regarding their independence in exercising powers granted to them by law and their public loyalty, versus personal loyalty to the appointing authority.”

Statements by coalition members, most prominently the prime minister himself, which implied that the government could ignore an eventual decision by the court to cancel the dismissal, have led to speculations of a constitutional crisis.

According to Ynet News, Netanyahu hinted to the ministers during the cabinet meeting that the government wouldn't let the court prevent the dismissal. "Can anyone imagine that we would continue to work without trust because of a court order? That cannot happen, and it will not happen,” he reportedly said.

The court will hear the petitions on April 8 in front of a panel comprising its most senior judges: Supreme Court President Isaac Amit, incoming Deputy Supreme Court President Noam Sohlberg, and Justice Daphne Barak Erez.

According to Channel 12’s political analyst Amit Segal, this panel is likely to cancel the government’s decision. However, Segal estimates that there will be no constitutional crisis as Netanyahu is more likely to simply stop cooperating with Bar, rather than risk an all-out clash with the court.

In addition, Segal said that none of the candidates for Bar’s succession are likely to agree to a nomination, or even to appear for an interview, as long as the court proceedings continue.