No More Legal ‘Gatekeepers’? Plans to Downgrade the Status of Government Legal Advisers in Israel
The attorney general is a key officeholder in the Israeli legal system, although neither his or her powers, nor those of the many government lawyers subordinate to him or her, are comprehensively enumerated in statute and are therefore opaque and open to interpretation.While there may be some merit in proposals to better define the powers exercised by the attorney general and even to consider a new formula for division of labor between the attorney general and the state attorney, the proposed reforms do nothing of this sort.
Downgrading the independence of government legal advisers is not among the highest-profile proposals to reform the Israeli legal system being advanced by Israel’s new right-wing government. Next to limiting the power of the Supreme Court to review Knesset legislation and administrative decisions and changing the judicial appointment system from a predominantly professional system to a predominately political one, it seems like a wonky and technical change. But weakening the status of government legal advisers is actually an important and troubling part of the government’s package of proposed reforms. Like the other issues discussed in this series of articles, the significance of this proposed change cannot be understood in isolation from the others, and without considering the idiosyncratic nature of the checks and balances available in the Israeli context. This context is defined by an almost-sole reliance on legal institutions to limit the power of the executive and the legislature, both of which are always controlled in Israel’s parliamentary system of government by the same political bloc.
Like most other parts of the government apparatus in Israel, government lawyers are civil servants appointed through public tenders. The legal service in every government department is headed by a ministerial legal adviser, and all ministerial legal advisers are subject to the professional authority of the attorney general of Israel, who is also a civil servant, appointed by a governmental decision. The ministerial legal advisers must follow the attorney general’s legal policies, directives, and specific decisions.
The attorney general’s position is particularly powerful. He or she is the chief legal adviser to the Israeli government and, in addition to directing the ministerial legal advisers, also heads the professional legal service within the Ministry of Justice: The attorney general is responsible for the national criminal prosecution apparatus and directs the work of the state attorney, who, in turn, is in charge of all attorneys representing the state before the different domestic courts. Moreover, the attorney general is in charge of the department of the Ministry of Justice tasked with representing the state before international bodies and the Ministry of Justice department responsible for preparing drafts for government-initiated legislation.
The professional appointment process and the professional character of government legal advisers impact their professional identity: They regard the general public, not the individual government ministers, as their ultimate clients. The ministerial legal advisers, and especially the attorney general, are also considered to be legal “gatekeepers” entrusted with the task of promoting government policy while upholding the rule of law across the executive branch.
The unique status of the attorney general (who has been described by some of the institution’s critics, albeit in somewhat of an exaggeration, as more powerful than the prime minister) and, by extension, the unique status of the other legal advisers subordinate to him or her, has been the subject of a long-standing debate and controversy in Israel. Over time, this has also led to changes in how the attorney general is appointed and dismissed.
In the early years of the state, there was some uncertainty as to whether the attorney general was independent of the government and, in particular, whether he or she was subordinate to the minister of justice with regard to criminal law matters. A public commission headed by Supreme Court Justice Shimon Agranat recommended in 1962 that the independent status of the attorney general, especially in criminal prosecution matters, should be respected—but that he or she should also be required to consult on policy matters relating to criminal prosecution with the minister of justice. The commission also clarified that the attorney general pronounces the contents of the law for the executive branch, but that the government maintains discretion to deviate from the legal opinions of the attorney general in specific cases. This last recommendation has been eroded over the years, following the practice of the attorneys general from the 1970s onward to refuse to represent the government before the Supreme Court in cases in which the government or a specific minister refused to follow their legal advice. By 1993, the Supreme Court in Amitai v. The Prime Minister (the Pinchasi case) explicitly declared that “[t]here are two fundamental principles in this matter. One, that the opinion of the Attorney General in legal matters reflects, from the point of view of the government, the positive law; second, the representation of the state is entrusted to the Attorney General.”
In 1998, another public commission appointed to review the status of the attorney general, the Shamgar commission, accepted that it is for the attorney general to determine whether the government would be represented by outside counsel in cases in which he or she refuses to represent it. This, together with the authority of the attorney general to order the opening of criminal proceedings against ministers and other government officials that violate the law (as construed by the attorney general) and the holding in Pinchasi, effectively blocked the ability of government ministers to deviate from the interpretations of the law rendered by the attorney general.
The Shamgar commission also made recommendations relating to the manner of appointment and termination of terms of service for attorneys general, following the controversial termination of Yitzhak Zamir’s term as attorney general in 1986 (following his refusal to close a politically sensitive investigation into the extrajudicial killing by Israel Security Agency servicemen of Palestinian terror suspects held in their custody) and the failed attempt to appoint Roni Bar-On, a Likud activist to attorney general in 1997 (allegedly in order for him to end the corruption trial of Aryeh Deri, the leader of Shas, one of the coalition parties). The commission recommended that future appointments would be undertaken by the government on the basis of proposals made by a five-member nomination committee composed of a former Supreme Court judge, a former minister of justice, and representatives of the Knesset, the Israeli Bar Association, and Israeli law academia. The attorney general would be appointed to a nonrenewable six-year term, and he or she may be dismissed by the government only on the basis of specific grounds and after consulting with the nomination committee. The recommendations of the Shamgar commission were endorsed with minor changes by the government in 2000.
The upshot of these developments has been that the attorney general became over the years a very powerful legal gatekeeper within the executive branch. By requiring the government to follow the law as already interpreted or as likely to be interpreted by the Supreme Court, the attorney general and the many legal advisers serving in the attorney general’s office, constitute in effect the long arm of the Supreme Court inside the government apparatus. Given the scarcity of other institutional checks and balances, the attorney general became a meaningful constraint on executive power—although attorneys general have long articulated their role in positive terms as facilitators of governmental policy within the limits of the rule of law. The perception of government legal advisers as placing legal obstacles in the path of ministers and other state officials, and as holding veto power over government action that they qualify as illegal, has generated resentment and political initiatives to curb the powers of the attorney general and the other government lawyers under his or her charge. Among these initiatives one may note that the previous minister of justice, Gideon Saar, pushed—ultimately unsuccessfully—toward splitting the role of attorney general: retaining the office’s advisory functions and limiting its involvement in criminal prosecutions.
The tension between politicians in office and the attorney general has reached climatic heights following the decision of Attorney General Avichai Mandelblit to indict Prime Minister Benjamin Netanyahu in 2020 on three corruption charges. Netanyahu claimed that he was unlawfully framed by the Israeli Police and the state prosecutors for whom the attorney general is responsible. This led, in turn, to a harsh reaction by Netanyahu’s supporters, directed against the attorney general, the state attorney, the chief of police, and members of the Netanyahu prosecution team, involving at times harassment of these officeholders in and around their private homes. Relations between the prime minister and the attorney general deteriorated to such a degree that the former tried to appoint a new minister of justice against the vocal protests of the attorney general, who asserted during the government vote for the appointment that the appointment was being made in violation of the applicable voting procedures. Furthermore, the attorney general reportedly considered declaring the prime minister as “legally incapacitated” and no longer fit for office due to his using his official pulpit to repetitively attack the prosecutors conducting the legal case against him. It has been reported (and denied) that the current attorney general, Gali Baharav-Miara, is also considering suspending Netanyahu for repeated violations of his “conflict of interest” undertaking not to use his official position in connection with his corruption trial, which served as one of the legal bases of a 2020 Supreme Court decision to allow him to serve as prime minister while facing trial.
The Current Proposals
The new minister of justice, Yariv Levin, announced on Jan. 4, 2023—as part of his package of judicial reforms—his plan to cut down the power of government legal advisers to require the government to follow their legal positions. According to Levin, the proposed measures would address the democratic anomaly that too many important decisions in Israel are being made by unelected officials.
This plan found expression in a draft bill published by the chair of the Knesset Constitution, Law and Justice Committee, Simcha Rothman, on Jan. 12, which he plans to adopt as a committee proposal (this has not happened to date due to procedural obstacles identified by the Knesset legal advisers relating, inter alia, to the impropriety of a Knesset committee and not the government taking the lead on a bill dealing with the status of government legal advisers). The draft bill stipulates that legal advice provided to the government or a government minister by their legal advisers would not be binding upon them, and that it would not change the legal situation in Israel. It also provides that the government and ministers are entitled to determine what legal position would be presented on behalf of their ministries to judicial decision-makers (that is, courts) and who will represent them before such judicial bodies.
Gur Bligh, the legal adviser for the Knesset Constitution, Law, and Justice Committee published on Jan. 17 a legal opinion heavily critical of the Rothman draft bill. He considers the new proposals, which would allow government ministers to act in ways that the professional legal advisers in their own ministries or the attorney general herself considers to be unlawful, incompatible with the rule of law and public trust in government. Adopting the proposals would also undermine the existing legal presumption in favor of the propriety of government action, which courts allow the government to invoke as a shield in litigation brought against government departments. This is because the presumption is premised on the availability of competent legal oversight inside the executive branch. The loss of the presumption would result in more litigation against the government, with associated costs and inefficiencies. Finally, the Knesset legal adviser also noted that the proposal would create confusion inside the executive branch in that it would put government officials in the awkward position of having to choose whether or not to follow the instructions of the minister or the law, as pronounced by the ministerial legal adviser (note that violation of the law, even under instruction of a minister, could generate criminal responsibility for state officials).
Deputy Attorney General Gil Limon stated before the committee, in the same vein, that acceptance of the bill on legal advisers, together with the other aspects of the reform, would lead to a situation in which the government interprets for itself the law and exerts great influence over the legislative process, judicial appointments, and judicial outcomes (including through the power to override court decisions), leading to a reality in which the government would not be above the law; rather, it would become, in the words of Limon, “the law itself.”
Finally, the coalition agreement between the Likud and the Religious Zionism party (the parties of Levin and Rothman, respectively) provides that ministerial legal advisers would no longer be recruited through a public tender but would become political appointees of the relevant minister, who would be authorized to hire and fire them. This change has not yet been proposed in a draft bill, but the very floating of the idea of politicizing what are currently public service positions has already led the union of public service lawyers to declare a labor dispute in response to what they consider a unilateral adverse change of their working conditions and promotion prospects.
The attorney general is a key officeholder in the Israeli legal system, although neither his or her powers, nor those of the many government lawyers subordinate to him or her, are comprehensively enumerated in statute and are therefore opaque and open to interpretation. While there may be some merit in proposals to better define the powers exercised by the attorney general and even to consider a new formula for division of labor between the attorney general and the state attorney, the proposed reforms do nothing of this sort. Instead they seek to politicize the position of ministerial legal advisers and weaken the powers of the attorney general and other government lawyers—a plan that constitutes a mirror image of the proposals to politicize and weaken the court system. In both cases, the plans by Levin and Rothman aim at removing, through a pincer movement, the limits on the power of the political branches of government that the current legal gatekeepers wield. Here, too, the response to concerns about excessive legal constraints appear to be removing almost all legal constraints.
That such proposals are raised by a government in which a number of ministers (including the prime minister) have been criminally indicted or convicted in the recent past for abuse of official power represents a great danger to the rule of law in Israel. In all likelihood, the new proposals would allow politicians to resort more easily to illegal activity at the expense of the public interest. Note that members of the Knesset and ministers who have broken the law may enjoy or receive from the Knesset immunity from criminal prosecution (which the Supreme Court would be less likely to interfere with after its powers of review are curtailed due to implementation of the planned judicial reforms); furthermore, in a highly populist political environment, such as the one that currently exists in Israel, the political price paid by those accused of illegal action and even personal corruption by “elitist” actors, such as the attorney general or mainstream media, is minimal. Hence, the politicization and weakening of government legal advisers could facilitate illegal activity by government officials without subsequent legal or political accountability. The end result would be the undermining of the rule of law in Israel and the facilitation of legal anarchy, with different ministers pursuing idiosyncratic legal policies, and with government officials being subject to conflicting political and legal instructions and expectations.
This article was originally published in Lawfare.