Israel: Impeachment of the Attorney General underway?

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At the moment, political impeachment proceedings are underway against the current Attorney General (AG) Gali Baharav-Miara on the initial initiative of the Minister for Communications, Shlomo Karhi (see below at the end).

He, the minister, was collecting signatures from his colleagues to initiate a removal. The current Prime Minister, Netanyahu, was not asked in order not to manoeuvre him into a situation that could accuse him of bias (conflict of interest).

Finally, days ago, the Minister of Justice made it formal. The impeachment procedure is formally opened.

On Wednesday, March 5, Justice Minister Yariv Levin formally launched the impeachment process against Baharav-Miara. Levin sent a letter to Cabinet Secretary Yossi Fuchs, requesting that a proposed resolution be added to the government’s agenda.

This resolution expressed “no confidence” in Baharav-Miara, citing her “inappropriate conduct” and “substantial and prolonged differences of opinion” with the government, which Levin argued made effective cooperation impossible.

Levin accused Baharav-Miara of acting as “the long arm of the government’s opponents” and thwarting the will of voters. He alleged she had created “two legal systems” – one for government supporters and another for its opponents – exacerbating political divisions in Israel.

Alongside the letter, Levin submitted an 886-page dossier detailing allegations of her misconduct. As of March 10, no cabinet vote had occurred.

A failure of the government. To fail is the norm of the actual full-right wing government. Levin started the dismissal procedure of the AG. Great, but I’m very, very sceptical. Till now, the Israeli government is the world champion of not keeping its word and announcements. Hope it is different this time. It will be a brilliant day. I believe it if I see it. My bet: The government will fold. Happy to be wrong.

Why is this? Because the AG has currently inundated Netanyahu with proceedings to protect herself, according to political speculation from various political observers.

The AG’s powers are indeed breathtaking and de facto not strictly regulated by law. The institution of the AG is based on common law, which can easily lead to arbitrary decisions. This is also the main accusation against the current AG.

Critics say that the AG enforces the law selectively against right-wing parties, NGOs, personalities, media and the right-wing government in general.

In no democracy does an AG have so many areas of power without being based on written laws and a written constitution. Unfortunately, Israel still has no written constitution comparable to the US Constitution.

When the country was founded, the citizens of Israel were promised that they would have a constitution within three months. The Basic Laws served just as a provisional measure. Well, no constitution ever came, and step by step, the Basic Laws evolved into a kind of quasi-constitution with no proper legitimacy, which means no people’s referendum.

The Basic Laws cannot be recognized as a real constitution approved by a referendum. They are transitional laws, as intended by the founders of the State of Israel. After all, one can say that the three months are up now.

Israel urgently needs fundamental state and judicial reform. In Israel, too much power is in the hands of unelected positions or institutions.

The Power of AG

The four areas of power, some of which conflict with each other (representative of the state and representative of the people), are listed below. Even more, these four areas of power conflict IMHO with the basic principle of democracy: We, the people.

It is the people which decides what is in the public interest. This is done by general and free elections electing the legit and legal representatives, aka Parliament, which elects the Government. Hence, the Government represents the state, and the Parliament represents the public interest and not an unelected institution, both according to my understanding:

• Head of the public prosecution system
• Representative of the state in all legal proceedings
• Chief legal counsel to the government
• Representative of the public interest in any legal matter

The derived deputy positions are

• Deputy Attorney General for consultation
• Deputy Attorney General for Legislation
• Deputy Attorney General for Jewish Law
• Deputy Attorney General for Special Assignments
• Deputy Attorney General for civil matters
• Deputy Attorney General for criminal matters
• Deputy Attorney General for fiscal-economic matters

The GA can be seen as a hybrid between the legislative and executive branches. To me, this is an incoherency that threatens the separation of powers.

Much more can be said. Critics say that democracy has been undermined by the AG because the will of the people no longer is decided by free and general elections (democratic elections of the legislative, aka Parliament as primus inter pares and the executive, aka Government), but the will of the AG. The position of the Supreme Court is similarly problematic, but this is a different issue that is not dealt with here.

However, both are closely linked, as Eugen Kontorovich pointed out in a REUTERS report about the current legal crisis in Israel, which focuses on the question, who rules the state? The elected ones or the unelected ones?

“Eugene Kontorovich, head of the international law department at the Kohelet Policy Forum, a conservative think tank based in Jerusalem, said an order from the Supreme Court for the prime minister to dismiss the minister would overstep judicial authority?

“If a prime minister can’t choose which ministers to hire and fire, he’s not the prime minister, he’s just a puppet of the courts,” Kontorovich said. He said the attorney general had not identified any specific laws that Ben-Gvir had violated.”

The Initial Initiative

Shlomo Karhi posted on X: “The letter to impeach the prosecutor is fully supported by the Minister of Justice Yariv Levin. Without the backing of the government ministers, it is difficult to start the procedure by the permanent mechanism for impeachment in the Shamgar Committee. The conduct of the ombudsman frustrates the government’s policy knowingly for political reasons while inventing unfounded legal obstacles and radically exceeding the limits of the legal mandate granted to it. It’s time to act. We will not be able to wash our hands clean if we do not do everything in our power to remove this obstacle from Israeli democracy. I am sure that in the end, under significant public pressure, additional ministers will announce their support for the move. The Minister of Justice informed me that in such a case of significant support, he would bring it up for discussion immediately. This political consultant should be sent home, preferably one hour earlier. signed: Likud: Shlomo Karai, Miki Zohar, Mai Golan, Idit Silman, Amichai Shikli, David Amsalem and Haim Katz. Torah Judaism: Yitzhak Goldknopf and Meir Parosh. Otzma Yehudit: Itamar Ben Gabir, Yitzhak Wasserlauf and Amichai Eliyahu. Religious Zionism: Orit Strock. (Yariv Levin did not sign, of course, because he is the executor and the Prime Minister is out of the picture due to the conflict of interest she forced upon him for her protection).“

The highly acknowledged expert on international law, Eugen Kontorovich, wrote about the position of the AG: “Israel is the only democratic country where the Attorney General, not directly selected or removable by the government, can petition the court to annul constitutional amendments. Israel’s AG is a Roman censor, the Court’s secret policeman that gets to set in at cabinet meetings.“

We will see who is in charge in Israel: We the people, or someone else?

First published 3.12.2024. Adapted to current developments