The Attack on Legal Oversight Threatens Us All

Flash 90

Government-sponsored legislation proposing to change how ministry legal advisors are appointed has stirred up quite a storm. Prof. Yitzhak Zamir, who served both as Attorney General and as a Supreme Court justice, has stated that he cannot recall “a harsher and more dangerous bill.” The incumbent Attorney General, too, in a rare appearance in the Knesset, spoke out forcefully against the bill. Many legal experts are warning of the “danger to the rule of law.” Why are they so upset?

It is important to distinguish the job of a private attorney from that of an attorney in the public service. The former is beholden to a single client, who has hired his services; the latter has two clients — the government ministry to which he is appointed, and the public. In addition to legal advice, an attorney in the public service is also responsible for safeguarding the rule of law, for the benefit of us all. This dual role justifies dual input — by the minister and by the Attorney General — in the selection of ministry legal advisors. The question is, which of the two should have the upper hand in the process?

The bill in question would transfer the supreme authority on the matter from the Attorney General to the minister. The bill proposes to establish a search committee made up of members who are the minister’s confidants, and headed by the ministry’s director general. The Attorney General would retain veto power at the end of the process to prevent an inappropriate appointment.

The motive for this reform is the assertion that ministry legal advisors do not always serve the minister’s policy, and in fact impose their own policies by taking advantage of their professional legal authority. There is still much debate as to whether this is truly the case; if it is, it should be set right However, the basic question remains: is it fitting to place supreme authority on the appointment of legal advisors in the hands of politicians?

Let us imagine as a thought experiment that I want to appoint a person to be my trustee and grant him extremely broad powers: the power to protect my physical security, to use violence against me, to educate my children, to provide me with medical treatment, to ensure my welfare in old age, and more. And suppose that for this purpose I were to hand over about half the income I am to make over the course of my life. It goes without saying that I would only choose someone in whom I have trust. Yet, it’s foolish to think that trust is enough. Trust may be necessary, but it is certainly not sufficient. To be sure that this all-powerful trustee would act in accordance with the rules, I would need to appoint a supervisor to ensure that the trustee does not abuse this immense power. I would ensure that this watchdog is independent of the man he is overseeing, both when he is hired and while he is on the job, so that he will be able to protect my interests should any conflict of interest arise.

And from the vehicle to the tenor: Government ministers are public trustees. On election day we express our confidence that they will act in the public interest and we confer on them vast powers of the sort described above. Their actions are funded by our taxes. Their job is to set and implement policy in their field of responsibility, for the benefit of us all, and pursuant to the law. But — and this is the crux of the matter — we must not agree to allow the trustees to both wield power while also appointing those who are supposed to restrain their use of that power. That seems elementary.

The bill before the Knesset, which would permit the person supervised to appoint his supervisor, would create a natural, conscious — as well as unconscious — bias, and incentivize attorneys in the public service to render opinions that please the incumbent minister. Those reputed to be strict guardians of rule of law would lose the chance for promotion, because a search committee controlled by the minister would not even consider them for the job. The Attorney General’s veto would be of little use because the search committee would never present the best qualified candidates for his approval.

There is good reason to think that the ultimate goal of the proposal is to make it clear to attorneys in the public service that their careers depend first and foremost on politicians. This would have chilling and grave effects on legal oversight of political activity in Israel. The idea should worry all of us, not only jurists.

 The article was first published in Times of Israel.