The government’s wish to dismiss its legal counsel, Attorney General Gali Baharav-Miara and the obstacle set in its path by the High Court of Justice (the HCJ) have sparked fierce public debate. In order to understand the matter more fundamentally and see how some of the Justices are now acting contrary to explicit opinions of their own, we must go back in time and trace the changes made to the appointment and dismissal practices of the government’s Attorney General (AG), one of the most senior positions in Israel’s system of governance.
In the year 2000, the Ehud Barak-led government decided to change the way in which the AG is appointed and dismissed. Until then, the AG had been appointed via regular government resolution. The Justice Minister would propose a nominee and the government appointed him or her. In this manner AGs Meir Shamgar, Aharon Barak and Yitzhak Zamir, for example, were appointed. The decision to make a change followed the report made by the Shamgar Commission, established three years before to examine various aspects of the AG position. The Shamgar Commission recommended anchoring all its proposals in law, but the Barak government decided to do so by government resolution.
This resolution added another phase to the appointment/dismissal process: consultation with a five-member government committee, headed by a former Supreme Court Justice, alongside a former Justice Minister or AG, an MK, a representative of the Israel Bar Association and a representative of legal academia. According to the resolution, nominees need to obtain four votes out of five in order to receive the committee’s recommendation. It is important to note that the resolution also stipulated that the government is permitted to dismiss the AG – upon consultation with the Committee – should, for example, there be “fundamental and ongoing disagreements between the government and the Attorney General, creating a situation that prevents effective cooperation”. The AG’s term of office was determined to be six years.
Meni Mazuz was the first AG to be appointed by the new mechanism; however, at the close of his term, the committee was unsuccessful in choosing a replacement. No nominee obtained the four required votes from the committee’s members. The government therefore decided that for that particular appointment, the resolution would not be applied, but rather the previous procedure – nomination by the Justice Minister, whereupon Minister Yaakov Ne’eman chose Adv. Yehuda Weinstein for the job.
Fast forward to 2025. Israel’s 37th government “inherited” the current AG Gali Baharav-Miara from the previous administration. From the very first, the AG waged an oppositional campaign against nearly every key policy of the new government. From the judicial reform to which she aggressively opposed in an unprecedented manner; through her objection to almost every government appointment, such as Dr. Odelia Minnes and Maj.-Gen. David Zini; to blocking government representation in Court.
The number of times the AG refused to represent the government in court grew unprecedented. In at least three cases where she refused to represent the government’s position, the Court ruled her wrong and sided with the government. One such example was the appointment of Dr. Minnes to serve as acting chair of the Second Television and Radio Authority Board. AG Baharav-Miara claimed the appointment was so illegal that the government should not even be allowed to represent itself in the proceedings through private counsel. In point of fact, not only did the government have a case, but the court thoroughly rejected the AG’s position. For all intents and purposes, the AG’s opposition to every government policy initiative has become her default position, in a vindictive, unprofessional manner and contrary to the law.
When things reached a breaking point, the government decided to dismiss her. The grounds were clear: “Fundamental and ongoing disagreements between the government and the Attorney General, creating a situation that prevents effective cooperation.” However, the government encountered a problem at the very beginning of the process: the professional committee it was required to consult with as per the Barak government’s resolution lacked a former justice minister or AG. When Justice Minister Levin tried to find a former Justice minister or AG to serve on the committee, he encountered one of two situations – either the person refused to be appointed, or they had already publicly expressed an opinion opposing the dismissal and supporting Adv. Baharav-Miara. Seeing this, the government chose to act similarly to what was done back when Weinstein was appointed, and established a new ministerial committee. The committee convened, made its recommendation, and ultimately decided to dismiss Baharav-Miara.
Thus began the saga in the HCJ. At the hearing on a petition against the AG’s dismissal, the government made the unusual decision not to appear, arguing there was no justification for the government’s legal advisory resources to serve Adv. Baharav-Miara rather than the government. We know the result: The Court ruled the dismissal void, and the same for the government’s resolution regarding the ministerial committee. The Court’s decision was written by Justice Yitzhak Amit, and all members of the panel unanimously agreed with the decision .
A close examination of the decision reveals it to be wildly unprecedented. In Israeli administrative law – in most modern legal systems in fact – a longstanding and central rule governing all hearing procedures in the HCJ and other administrative law courts is ‘the presumption of administrative regularity’. This means that by and large a government resolution, for instance, will be considered correct by default. A resolution will be considered legal unless it is proven, even minimally, that it suffers some legal deficiency.
This point is critical, since effectively all rules governing HCJ hearings are based on it. Civil suits are the opposite. Anyone can file a suit against anyone else, and the very fact a suit was filed obligates the defendant to mount a defense. What happens to someone who doesn’t file a defense brief and chooses not to appear in Court? That’s right, the suit against them will be accepted wholesale. Ask Yair Netanyahu, who found out the hard way in 2020. But the opposite is true for the HCJ. Plaintiffs must prove their suit regardless of state or government actions. Only once plaintiffs have proved their case can their petition be accepted. Such, at any rate, was the law of the land until this week. Now the High Court has decided to flip administrative law on its head.
First, the Court determined that the issuance itself of an order nisi – an order that requires the government to justify the action against which a petition was filed – is sufficient to accept the petitions without any need to address the merit of their arguments, just as in the case of a civil lawsuit. The main thrust of the ruling is based on the claim that the government’s silence and refusal to respond to the petitions “justifies, in and of itself, making the order nisi absolute.”
In fact, the Court actually went one step further. It determined that should a government desire to change a previous government’s decision – any previous government’s decision – the burden lies on it to explain why the new decision is a better one. If the government remains silent and does not so explain (and convince the court), then the decision is void from the outset. This is the exact opposite of the most basic rule in administrative law. In Justice Amit’s words: “No reasons have been presented to us at this stage justifying the deviation from Resolution 2274 [the resolution adopted by the Barak government].”
The result is utterly absurd. A right-wing government headed by Benjamin Netanyahu is not allowed to change any decisions made by a left-wing government under Ehud Barak, unless the Court agrees that the new decision is better.
Aside from the stark absurdity of the bottom line I just pointed out, I would like to address the role played in this ruling by two of the Justices – Deputy President of the Supreme Court Noam Sohlberg and Justice David Mintz. These Justices are sometimes described in the media as “conservative”, given their tendency to adhere to the rule-of-law principle and oppose judicial activism. However, both of them signed on to Justice Amit’s ruling in complete agreement and without reservation. The very fact they concurred with an absurd activist ruling, which contradicts such a longstanding principle of administrative law, is puzzling enough. But in this case the question is much greater, since both of them wrote the exact opposite in the not-so-distant past.
Take Justice Mintz, who, in a minority opinion he wrote only five years ago, rejected the idea that an order nisi makes accepting a petition the default position. In that ruling, a dispute arose between him and then-Deputy President Justice Hanan Melcer. Justice Melcer believed that once an order nisi is issued, the burden shifts to the government to prove it is in the right, and if it fails to do so (or remains silent), the petition against it is automatically accepted. Justice Mintz, however, disagreed with him explicitly and emphatically, pointing to the presumption of administrative regularity and the requirement to prove a petition before the court can accept it, even if an order nisi was issued. And here’s the truly astonishing part: the current decision on the AG’s dismissal refers to this very ruling by Justice Melcer and bases itself upon it (paragraph 41). Yet that very ruling against his explicit position now receives Justice Mintz’s unqualified support.
Similarly, Justice Sohlberg opposed the position held by Justices Amit and Barak-Erez regarding the disqualification of the Civil Service Commissioner appointment mechanism only six months ago, writing that it contradicted the presumption of regularity that usually “guides our way in public law.”
The question must be asked: What caused Justices Sohlberg and Mintz to concur with such a radical ruling, one that upends the entire system of administrative law? What caused them to agree with a ruling that is based on reasoning they themselves explicitly opposed? Even if they thought the ruling’s conclusion correct for other reasons – why didn’t they write minority opinions explaining why?
Is it possible that “we must break the law to save the law”? Did Justice Amit’s political need for a “unanimous” ruling that broadcast a “united front” against the government lead the “conservative” justices to abandon their principles? A grave concern arises that the conduct of Justices Mintz and Sohlberg stemmed less from professional-legal considerations and more from a desire to punish the Minister of Justice and the government for their refusal to participate in the hearing.
Such conduct is not based on professional principles but on political ones, and stands in complete contradiction to the rule-of-law principle.
I submit as a conclusion, a passage from Justice Sohlberg’s ruling on the Civil Service Commissioner case: “Indeed, sometimes the gap between the law as it is and the law as it should be evokes frustration; however, we must guard against the temptation to ignore the first in order to reach the latter. Even if at times we can help close the distance between the two, you can only stretch things so far before they break. These are the limitations imposed on us by our very role, this is our duty”.
(First published in Hebrew in Makor Rishon)
