The Role of the Attorney General and Government Conduct
Photo by Yonatan Sindel/Flash90
One of the central roles of the Attorney General is to serve as the authorized interpreter of the law. The Attorney General has the exclusive authority to provide legal counsel to the government and to state agencies regarding the advancement of their policies within the boundaries of the law, and accordingly to issue warnings when these boundaries are crossed. As the Supreme Court recently ruled unanimously, in an expanded panel of nine justices: “The Attorney General is the authorized interpreter of the law regarding the executive branch… and her interpretation is binding on the executive branch.”HCJ 6198/23 Movement for Quality Government in Israel v. Minister of Defense (June 25, 2024).
The government is subject to the law. The binding legal counsel given by the Attorney General is intended to assist the government, and all its ministries, in legally advancing their objectives, and to avoid breaking the law, while protecting the public interest and the rule of law. This role of the Attorney General is in addition to her role in representing the state and the public interest in court cases, and her role as the head of public prosecutions.
The Attorney General’s authority as the sole interpreter of the law is a cornerstone of Israeli law. This role is vital in addressing the many situations in which existing legislation and Supreme Court rulings do not provide a clear answer to legal questions. For example, is a minister who is deputizing for another minister entitled to vote twice in government meetings? Is a government vote held in contravention of government code considered a valid decision? Often, questions of legal interpretation can have consequences for the protection of citizens’ rights. For example, the government might require interpretation regarding the scope of the right to freedom of information concerning protocols of government meetings, and the police might require interpretation on the implementation of freedom of assembly in accordance with the relevant legislation and case law.
In recent days, the Attorney General and her deputy issued warnings to the government on several different occasions that its decisions are being made via “flawed work processes.” This message comes in the wake of a previous warning by the Attorney General in February 2024, when the Deputy Attorney General flagged improper decision-making processes in a government decision relating to the construction industry, despite a legal impediment preventing its discussion in government.For more on these examples, see: Anat Thon Ashkenazy and Daphne Benvenisty, “The Judicial Overhaul and Anti-Democratic Initiatives—Part III,” IDI website, August 13, 2024 [Hebrew], https://www.idi.org.il/articles/54971.
In various letters, the Attorney General’s Office has provided several examples of these flawed work processes: relying on unauthorized legal opinions; making decisions that contravene the law, while ignoring objections from the Attorney General’s Office; and making appointments to public office that fail to meet minimum requirements.
This conduct, in the words of the Attorney General, “breaks the law and harms public [interest].”
Making government decisions in contravention of the law or via an improper procedure
- Ignoring the legal opinion of the Attorney General. The government passed a decision changing the appointment procedure for the next Civil Service Commissioner. The government decided that the next Civil Service Commissioner would be proposed by the Prime Minister and approved by the Consultatory Committee on Senior Appointments. The Attorney General has highlighted a legal impediment to the process, emphasizing that in order to ensure a proper procedure for the appointment of the next civil service commissioner and maintain the independence from government interference, the selection should be made by an appointments committee headed by a retired Supreme Court justice.
Approving decisions with legal impediments; flawed government work processes. At the end of a government meeting, after the Prime Minister and most ministers had left, the Finance Minister verbally proposed substantial additions to his proposal for accelerating the construction and real estate sector. Representatives of the Attorney General stressed that these addendums could not be voted on due to legal difficulties. Reports in the media indicated that the legal obstacles included the lack of guarantees to ensure that workers’ rights would not be harmed, the potential violation of international agreements, and a potential conflict with US policy regarding human trafficking. Two addendums were approved by the government despite these objections, including one to which there were legal impediments. This conduct led the Deputy Attorney General to notify the Cabinet Secretary of the improper nature of procedures for making government decisions. In his written response, the Cabinet Secretary disputed the Attorney General’s authority to interpret the legality of the government’s decision-making processes, writing that “you and I do not have the authority to overrule government decisions.”
Approval of government appointments by an improper procedure
- The government announced the appointment of Dr. Odelia Minnes as the interim chair of the board of the Second Authority for Television and Radio, despite opposition from the legal advisor to the Ministry of Communications, who noted that the candidate did not meet the prerequisites for the position. Following the government’s approval of the appointment, the Attorney General’s Office informed the Minister of Communications that “because the government is not authorized to approve the appointment of an individual who does not meet the requirements…, this decision was made without the requisite authority, and is therefore invalid.” It was also pointed out that the government’s decision-making process was flawed as well: the appointment proposal was not listed on the agenda for the government meeting, but rather it was introduced during the meeting itself.
- The government disregarded the Attorney General’s warning of a conflict of interest and approved the appointment of Eliezer Marom as project manager for the north of the country.
Attempting to expand the use of private legal representation without authorization from the Attorney General, and relying on legal opinions from unauthorized parties
Attempting to use private legal representation without authorization. The government decided to extend the Attorney General’s special approval for private legal representation in the Supreme Court case on the exemption from military service for yeshiva students to all relevant government ministries and state agencies. This government decision was later revoked by the Supreme Court, which stated that “separate representation does not mean separate counsel,” and that the permission to separate legal representation does not permit the government to undermine the Attorney General’s authority as the sole legal legal interpreter for the government.
- Relying on unauthorized legal opinions issued by advisors outside the Attorney General’s Office:
- The Cabinet Secretary provided legal opinions with significant defense implications without proper authority (the Attorney General’s letter to the government did not specify the context).
- Without proper authority, the Cabinet Secretary provided a legal interpretation on conscription, following the Supreme Court ruling on the issue.
- The government discussed a draft decision (that did not ultimately pass) related to the International Court of Justice’s Advisory Opinion on the legality of Israel’s occupation of the West Bank. The draft was prepared without the involvement of the Attorney General’s Office, and included a private legal opinion from Prof. Talia Einhorn, but lacked a legal opinion from the Attorney General’s Office.
The Attorney General has stated that making decisions via improper work processes constitutes a breach of law and harms the public interest. Such conduct may lead the government to disavow its obligation to comply with court rulings. Dismissing the Attorney General's authority to guide the government on court decisions infringes upon citizens’ rights, which these rulings are meant to protect.
An example of the consequences of unauthorized actions by the Cabinet Secretary is evident in the implementation of the Supreme Court ruling on the exemptions from military service for yeshiva students. The Court, in a unanimous ruling by a panel of nine justices, declared that there is no legal basis for differentiating between yeshiva students and other young people eligible for military conscription, stating that “the state must act to draft them.” The Court did not elaborate on how the law should be enforced and how many yeshiva students should be drafted, but directed that “the military authorities should act in accordance with the rules of administrative law.”
When the Deputy Attorney General issued guidelines to the government on implementing the ruling, the Cabinet Secretary disputed this interpretation and—without legal authorization—issued an alternative legal interpretation.
The Cabinet Secretary's disregard for the Attorney General’s Office’s authority to guide the IDF on applying the ruling could enable the government to evade the implementation of the Supreme Court’s ruling or interpret it in a way that contravenes the law. As a result, the government could continue with its practice of unequal enforcement of the Military Service Law, and, in practice, continue to grant sweeping exemptions to yeshiva students without any legal basis.
It is a foundational principle that the government and its ministers are responsible for advancing policies that reflect their worldview and serve the public interest. Meanwhile, the role of the Attorney General’s Office is to help implement this policy legally, and to set boundaries when the government deviates from the law. As the “gatekeeper” entrusted with protecting the public interest and enforcing the law, that the Attorney General’s Office must remain fully independent, so that it can interpret the law based solely on professional considerations, without government interference. Undermining the authority of the Attorney General’s legal opinions threatens this professional independence and may lead to a situation where no professional body is able to warn about infringements of the law, except through court challenges.
Moreover, Israel’s political structure, which grants significant power to the government with relatively weak checks and balances compared to other countries, makes it especially crucial to safeguard the status of the legal counsel given by the Attorney General. Key features contributing to this need include the Knesset’s limited ability to oversee the government, the existence of only one legislative chamber, the coalitionary nature of the government (which strengthens the government’s rule), and the absence of an enshrined constitution restricting the powers of the ruling bodies.
In Israel, the main check on the government’s power is the Supreme Court, which can only address legal infringements brought to it by citizens who file petitions. This is merely the tip of the iceberg, leaving the vast majority of the government’s actions unexamined, without effective judicial review. The role of the Attorney General and the status of her legal opinions protect against infringements of proper administrative procedures that break the law and harm the public interest.
In January 2023, as part of its so-called “judicial reform,” the chair of the Knesset Constitution Committee, MK Simcha Rotman, presented a draft of a bill proposing that “legal counsel given to the government will not be binding,” and “the government, the prime minister, and all government ministers are entitled to reject the legal counsel [they receive] and act in contravention of it.” Although this bill was never passed into law, recent government conduct might lead one to assume that it has been.
In this sense, the government’s conduct should be seen as part of the “judicial reform” by other means, adopting its tenets through government policies and decisions, without any legal basis.