Netanyahu and His Ministers Have Driven Israel to the Verge of a Constitutional Crisis

Disregard of the Attorney General’s authority to interpret the law by several government ministers is leading Israel toward a constitutional crisis.

Photos by: Yonatan Sindel/Flash90 (Itamar Ben-Gvir), Chaim Goldberg/Flash90 (Gali Baharav Miara)

The letter that Attorney General Gali Baharav-Miara sent on August 6 should have caused an earthquake in Israel. The attorney general ruled that the cabinet has been systematically ignoring proper work procedures, that it has been relying on legal opinions from unauthorized officials (private individuals or the cabinet secretary), including opinions dealing with "weighty" questions "in the security field," that have resulted in the "violation of the law and harm to the public."

As if to reinforce the contents of the letter, there are cabinet ministers who since then have continued to demonstrably ignore the attorney general's explicit ruling. For example, about a week ago, Finance Minister Bezalel Smotrich decided that Baharav-Miara's interpretation regarding the government's obligation to halt daycare tuition subsidies for the children of yeshiva students was issued "without authority." He ordered the subsidies to continue.

In response to the attorney general's ruling on the illegality of the promotion of Superintendent Meir Suissa to commander of a Tel Aviv police station, National Security Minister Itamar Ben-Gvir responded: "The appointment won't be rescinded. … The attorney general is an official who recommends and not an official who decides, and therefore Suissa is the commander of the South Tel Aviv station."

In that case, Ben-Gvir's decision to ignore Baharav-Miara's binding interpretation was unusually grave because it involved an appointment to a position that involves enforcement of the law – so when the law is ignored, the harm to the rule of law is particularly severe.

Furthermore, as noted in a letter from Deputy Attorney General Gil Limon, a petition filed in the Jerusalem District Court challenging the appointment was withdrawn after the state declared that there was no recommendation from the police commissioner in support of the officer's promotion in light of misconduct investigations and an indictment against him. Based on rules at the Public Security Ministry and the police, senior police appointments cannot be made in the absence of a recommendation from the police commissioner.

The Attorney General's Office also warned the ministry in advance of the need to wait on any recommendation in support of Suissa's appointment until an investigation against him is completed. Nevertheless, a ceremony on August 22 marking the promotion in rank of members of the force was followed by an announcement of Suissa's appointment as commander of the South Tel Aviv station. Limon's letter therefore stated that the appointment was illegal and that it would be illegal for Suissa to be promoted in rank or begin the new job.

There's a common thread running from Smotrich and Ben-Gvir's disregard of the Attorney General's Office, to Justice Minister Yariv Levin's refusal to appoint a president and justices to the Supreme Court, to proposed government legislation infringing on freedom of expression and protest and harm to the professional appointment process in the public service. They all represent continued efforts following last year's attempted judicial coup by the government. Now, however, it involves creating facts on the ground instead of amending Basic Laws.

It also involves an another principle. The cabinet and its ministers are dragging Israel toward the threshold of a constitutional crisis. Just recently, a panel of nine High Court justices unanimously ruled that "the attorney general is the authorized interpreter of the law for the executive branch, and her interpretation is binding on the executive branch." As a result, systematically ignoring her standing indirectly means ignoring an explicit, current and unequivocal High Court ruling.

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This article was translated by and published in Haaretz-English