The High Court of Justice will hear petitions today against the government’s dismissal of Shin Bet (Israel Security Agency) head Ronen Bar, in a case that has the potential to plunge the country into a constitutional crisis.
Prime Minister Benjamin Netanyahu informed Bar of his intention to fire him on March 16, citing a “lack of trust,” while Bar said the reasons for firing him were baseless.
At the heart of the matter are questions of conflict of interest on the part of the prime minister, due process or a lack thereof, and a broader disagreement of what a functioning democracy looks like and where the power splits fall. The case will be before Chief Justice Isaac Amit, Deputy Chief Justice Noam Solberg, and justice Dafna Barak-Erez.
Ordinarily, the figure representing the government would be the attorney-general, as the figure that leads the government’s legal system and the state’s public prosecution. Part of that position is curbing the government’s actions when they are not in line with the law.
In this case, Attorney-General Gali Baharav Miara warned that Netanyahu’s move was illegal and will present arguments against the move. She therefore approved for the government and Netanyahu to be represented separately – by attorneys Zion Amir, Yinon Sartal, and Nir Lazar.
The petitioners will speak first, followed by the attorney-general. The Knesset will present next, followed by the government representatives, after which the petitioners will have a short time to respond. The petitioners are composed of eight different groups.
Conflict of interests in the firing
The petitioners will argue that Netanyahu has a conflict of interests in the firing, as the Shin Bet is currently investigating two affairs that involve figures close to the prime minister: The leaked documents affair, and “Qatargate.” The two main suspects are former aide Yonatan Urich and former spokesman Eli Feldstein.
The government would respond that Bar should have been fired for his role in the October 7 massacre intelligence failure and that he should have followed former IDF chief of staff Herzi Halevi in resigning after his agency’s probe into the failures was released last month. It would further say that the conflict of interest lies with Bar, not Netanyahu, that he wanted to avoid the dismissal and so the cases were opened.
Another issue will be one of due process: Does the firing of the Shin Bet head need to go through the Senior Appointments Advisory Committee? This person’s appointment is one of seven senior positions that get approved through this committee, but it is not clear if the same applies to their dismissal. The law isn’t clear; there are a few government decisions on the matter, but they are not clear. When there are a series, chronologically, of government decisions, the later ones override the previous ones. So, when Netanyahu dismissed Bar in March, that decision overrode the others.
The attorney-general would argue that due process would require the dismissal to go through the committee, while the government would argue the opposite.
‘A lack of trust is not enough’
Another issue is personal responsibility and trust. The petitioners would argue that the Bar’s position is not what is considered a personal appointment; it has an independent status, and so if he is to be fired, there has to be a good enough reason – a lack of trust is not enough.
The government would argue that Bar should have resigned out of a sense of personal responsibility for his role as intelligence chief during Israel’s worst intelligence failure, and that when he didn’t, the government stepped up.
It is hard to measure trust and how much is necessary for a symbiotic work relationship. Netanyahu said in recent weeks that his lack of trust in Bar began on October 7, 2023, when he didn’t call the prime minister to warn him of the Hamas attacks. A few months ago, Bar called on the government to establish a national commission of inquiry, an issue that is seen as purely political and out of Bar’s realm of influence, which is how the government viewed the move.
The hearings will also touch on a much broader issue, which really shells out the heart of the debate: What elements of democracy are subdued or gained by either side? The petitioners would argue that if Bar’s firing goes through, it would set a precedent and could potentially affect the loyalties of the next heads of the agency – who would be loyal first to the prime minister, as opposed to be loyal to the agency’s values and Israel’s protection.
The government would argue that in a democracy, majority rules, and a government decision that passed – it stands; Bar can be fired because the government decided that he would be. Furthermore, if the court were to block the dismissal, that would be a breach of the separation of powers between the different state bodies. The court would force the government to work with an intelligence chief it does not trust, but the court would not have to carry out the consequences of such an act.
The hearing will be live-streamed. In the court of public opinion, the more the government can convince the public that this is all a ploy for Bar to stay in his position, it will have gained the legitimacy to perhaps ignore the High Court ruling if it comes to that. This would lead Israel straight into a constitutional crisis.
On the other hand, the moment the public believes that the government is ignoring the ruling, the larger the pushback will be – on all fronts. But, if the government can convince the public that this was all illegitimate, the more leeway it will have to push boundaries when it comes to obeying the ruling.
However, there is a lot of middle ground before that line is crossed; the High Court has many tools at its disposal to prevent Israel from getting to that point, because it wouldn’t be able to flat-out deny the dismissal without risking the government’s very existence.
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