The Regulation of the Legal Advisors: the end of democracy?

The Legal Forum for Israel

It is no secret that in recent months, the State of Israel has been in the midst of an important struggle over the nature of the State of Israel. The focus of this struggle is on the judicial system, which in recent decades has assumed significant power that has been used and continues to be used to directly affect the character of the state. Both sides of this battle understand the importance of defining the role of the judiciary – on one side are those that have taken to the streets to demonstrate against any changes to the system, and on the other side are the majority of the people who voted for and repeatedly expressed their support for amending the judicial system.

As a result of these internal struggles, several parts of the proposed legal reform were frozen, and it seems that the government currently intends to focus on two issues: amending the “reasonability” clause and writing a law that will regulate the role of the legal advisors. In the present article we will focus on the current state of the legal advisors, the reason behind the necessity to define their role and what the proposed law is.

The Attorney General of Israel has a unique position. Not only is she or he the head of the prosecution, the Attorney General is also the legal advisor to the government. Normally, the role of the legal advisor is to advise the government on how best to legally implement its policies, but in the State of Israel, according to the rulings of the Supreme Court, the legal advisor to the government has veto power over the government’s decisions.  In the case where there is a petition against a governmental decision and the legal advisor disagrees with this decision, this “advisor” will simply present his or her opinion before the court, which contradicts the government’s position, and, in addition, prevents the government from being represented in court by another lawyer. Thus, there are two lawyers before the court: one who represents the petitioning side and opposes the government’s decision, and one who is supposed to represent the government but in fact presents an opinion that opposes the government’s decision and agrees with the petitioner. This is an absurd situation in which the Israeli government has no ability to defend itself before the court, which is a basic right that exists for every person who stands before a judicial tribunal, but is not granted to the Israeli government and the public it represents.

In addition, as mentioned above, the fact that the Attorney General is the legal advisor to the government and is also the head of the prosecution, is very problematic and results in many conflicts of interest. As one example, the person who is supposed to advise the Prime Minister is also responsible for the case against him in court! In addition, the current legal advisor, who is the one prosecuting Netanyahu, ruled that the Prime Minister is not allowed to deal with any issue related to the justice system due to a conflict of interest. And yet, she did not see a problem with the fact that she is in the exact same situation of a conflict of interest for her position will also be affected by the proposed changes to the judicial system.

The powers of the State’s legal advisor are not regulated by legislation. Over the years, there were two committees chaired by Supreme Court Justices whose aim was to specify the role of the Attorney General, but their recommendations were not adopted by the government. The last committee chaired by former Supreme Court President Meir Shamgar recommended that the government be given the option of representing itself before the courts when there is a dispute between the government and the legal advisor. However, the Supreme Court headed by Aharon Barak reversed this recommendation and determined that the legal advisor is allowed to veto governmental decisions and deny it representation in court. Thus, the Supreme Court turned the role of the legal advisor into an unaccountable legislator, above the government, who is able to determine policies and prevent the elected government from fulfilling its promises to the electorate.

So why doesn’t the government fire the current legal advisor, who was appointed by the previous government and is doing her best to hinder the government from fulfilling its election promises? Why doesn’t the government appoint a legal advisor who supports its positions and gives legal advice as to how to implement, legally, government policy? This is what happens in any normal country. But in Israel, it is not that simple.

The law explicitly states that the Attorney General, who is also the governmental legal advisor, can be fired if there are substantial differences of opinion between him or her and the government. However, in order to fire the Attorney General, the law states that the search committee that was convened for the purpose of recommending the Attorney General recommend that she be fired. In the present case, the majority of the members of the search committee were appointed by the previous government which is now in the opposition and who would have no interest in firing the present Attorney General who supports the opposition’s positions. Even if they would recommend that she be fired, the decision would then be subject to the Supreme Court who, in this case, would probably prevent the firing with the excuse that there is a conflict of interest between the Prime Minister and the legal advisor, as this legal advisor is also in charge of the indictments against the Prime Minister.

In addition to the Attorney General, there are also legal advisors in the government ministries. Currently, appointments are made by a committee in which the Attorney General has decisive power and the legal “advisors” are professionally subordinate to the Attorney General. These “advisors”, according to the court’s ruling, also have veto power over the minister’s decisions. Once again, a legal “advisor” who has a different agenda from the minister that he or she is supposed to advise, is able to prevent the minister from implementing his or her policy.  Thus, by means of unelected legal “advisors” who have veto power over governmental decisions, the entire government, elected in democratic elections, is subject to political agendas and policies not necessarily its own.

What then are the current proposals regarding the governmental advisors? Why are people afraid, and is this really the end of legal oversight over the government and the end of democracy? The proposed law merely aims to achieve two things:

• That the legal advice provided by the legal advisors is advice and not binding to which the government is obligated, and
• To enable the government to have legal representation before the court, a right usually viewed as a fundamental right but which is currently denied to the government.

Rather than turn Israel into a dictatorship, the proposed law enhances democracy.  For years, the State of Israel has become a legal dictatorship, a country ruled by jurists who appoint themselves and do not allow elected officials to accomplish that for which they were elected. Members of the judicial system understand that the proposed amendments will take the power to rule the country away from them, and they, and their supporters, are doing everything that they can to prevent this from happening. Supporting the continued rule of the unelected judiciary, rather than the authority of the democratically elected government, is not democracy. So, who is really fighting for democracy?