Chaos in the Courtroom, Clarity on the Bench

Everything you need to know about yesterday's High Court hearing on Netanyahu's efforts to fire Shin Bet Director Ronen Bar went.

The dramatic Supreme Court hearing opened with shouts of “You have no authority!” from the audience. For several minutes, the justices tried to allow attorney Zion Amir to present his arguments without interruption.

Then came the remarks (some would say shouts) of MK Tally Gotliv, to which Chief Justice Amit responded: “MK Gotliv — in the courtroom, the person in charge of the hearing is the judge. Any immunity, real or imagined, ends at the courtroom door.” The shouting in the courtroom — including from bereaved father Itzik Bontzel — continued for several minutes, until the Court was forced to suspend the hearing. Even outside the courtroom, shouts and threats were heard against former heads of the security services and the petitioners.

One wonders whether this was all spontaneous or a planned attempt to intimidate the justices. In any case, the result, much like the situation in the country, shows that the initial events in the courtroom do not reflect a “democracy in retreat” — but rather resemble anarchy. Utter chaos.

The fact that former Shin Bet Chief Yoram Cohen required a security escort, the shouting, the disruptions, the crude language, and the cries of “traitors” — all indicate that the populist discourse—much like we've seen in the distain directed at hostage families—have now reached the doorstep of the Supreme Court.

This is the result of systematic delegitimization and daily verbal attacks against the judiciary. Will anyone who doesn’t conform to the government henceforth be exposed to such mayhem that they are unable to appear or testify in court? The spirit of chaos hovered over the entire hearing. Toward the end of the day, as Attorney Shraga took the stand and referred to the morning’s events, Chief Justice Amit added: “These are events we’ve been experiencing for several months... but today was indeed exceptional.”

After being left with no choice, the hearing resumed without an audience. As expected, the judges sought answers on the main issue: the procedural legality of the dismissal of Ronen Bar — the facts, whether Ronen Bar had an opportunity to respond to the claims against him, whether a hearing was held, and, if indeed there was a loss of confidence — when did it originate?

Attorney Amir argued that the government's authority to dismiss the head of the Shin Bet is broad and deep — “like the ocean,” in his words — and that the decision was made unanimously by the cabinet. He thus implied, and even stated, that the court should not interfere in the matter. In response to Justice Daphne Barak-Erez’s question whether he agrees that administrative law principles still apply (such as the right to a hearing), Attorney Amir replied that there was no dispute that administrative law applies to administrative authorities, but — the situation here is “unique.”

In his view, anyone who thinks a detailed hearing can be held during wartime, who believes it is possible to “pause” for a long legalistic process full of procedures, is mistaken. “This is a matter of national security,” said Amir. Moreover, he argued that the petition was political, filed by political individuals — all of whom have a “political color.” According to him, it is a hearing driven by partisan goals to transfer government powers to the Court. Amir warned that the justices would be responsible for the consequences of their ruling — that is, for the security implications. To this, Chief Justice Amit immediately responded: “I know you don’t mean it — but that’s intimidation of the Court.”

The themes of “danger” and “national security” were repeated throughout Attorney Amir’s arguments — both to justify the alleged procedural flaws and to warn the justices that if they annul the government’s decision, leaving Ronen Bar in office would pose a threat to the democratic order.

A threat to the democratic order? It seems to me that other threats to democracy should be considered: for example, the danger of turning the Shin Bet into a “secret police,” or the very real threat to democracy, as has happened in other countries where populist leaders replaced the heads of the security services with loyalists, seizing the levers of the state, its information, oversight, and power structures. To borrow a quote from Chief Justice Amit: “Sometimes democracies fall in great leaps.”

Back to the hearing: the argument regarding authority is, in fact, clear and explicitly based in law. There is no dispute that the government has the authority to dismiss the Shin Bet Director. But that is not the issue. Administrative law does not ask “what” the government is authorized to do — but “how” the decision is made. That the government has authority does not mean the power is absolute. That is why the justices repeatedly returned to the procedural aspect.

Attorney Amir claimed that Ronen Bar was invited to a government meeting — a sort of hearing — and he did not attend. From the justices' comments, it is unclear whether they accept this as constituting a genuine hearing. Justice Barak-Erez pressed: prior to a hearing, a full and detailed account must be given of the facts requiring response. But there was no clear answer to this point. Amir simply said: “Everyone knows there’s no trust [between Bar and the government], hearing or no hearing…”

Chief Justice Amit sharpened the issue, referring to a “hypothetical” scenario unrelated to the Shin Bet Director: “Let’s say the Governor of the Bank of Israel decides not to lower interest rates, and the government decides it must be lowered — what then? Will the Governor be dismissed?”

This is an important question because the matter at hand is far broader than the dismissal of the Shin Bet chief. If it becomes acceptable to fire a Shin Bet chief in an extraordinary manner, abruptly, before the end of their term, based on allegations of lost trust, without a factual basis, without a hearing, without convening the Advisory Committee for Senior Appointments, and without examining conflicts of interest — what fate awaits all other senior civil servants, such as the Governor of the Bank of Israel? Will they also be dismissed in the same manner?

Here, it is worth emphasizing that the Attorney General, in her legal opinion, noted that this case has far-reaching implications for the independence and professionalism of the entire civil service.

This message was conveyed clearly by Deputy Attorney General Aner Helman, representing the Attorney General’s position. He clarified that it is in everyone's interest that political considerations do not infiltrate such decisions. Professionals need to know that the potential for a sudden firing is not hanging over their head at every decision.

Helman concluded with a broad perspective: precisely because of the far-reaching power held by the security service, professional considerations must govern the exercise of enforcement powers. This ensures that any successor to Ronen Bar knows that if they are to be removed from office, it will be done properly, based on objective reasons — not just because they made a decision the government disliked.

After more than ten hours, the Supreme Court hearing concluded. The justices showed considerable patience — toward the interruptions, the interjections by attorneys, and the off-topic arguments.

At the end of the day, the Supreme Court issued a sharp and unequivocal interim order: Ronen Bar shall remain in his position “until another decision is made — with all that entails.” According to the order, the government may not proceed with any steps related to terminating the Shin Bet Director’s tenure, including appointing a successor or acting head, and may not undermine his powers.

And note the language apparently directed at those who declared that if the Supreme Court rules to keep Bar in his post — “we will boycott him.” The order states explicitly: “It is hereby clarified that the Prime Minister and the government are not permitted to deviate from the established working procedures in their professional relations with the head of the Shin Bet and the Shin Bet itself, including in the issuance of instructions to those subordinate to the Shin Bet Director.”

It would be hard to put it more clearly.

The first chapter has ended. To be continued.

 

This column was published in the Times of Israel.