For nearly a year a bitter debate has been taking place around amendment 20 to the Civil Service (appointments) Law, submitted by Justice Minister Ayelet Shaked, to the effect that in the future the ministerial legal advisers will be chosen by means of a search committee rather than a tender.
A private members’ bill (PMB) on the subject of the appointment of ministerial legal advisers was submitted by MK Amir Ohana (Likud) and another 24 MKs from the coalition benches in March 2017. This bill proposed that legal advisers be appointed directly by the minister whose ministry they are to serve, like ministerial directors-general – i.e., that the appointments should be political.
Ohana’s bill was approved in a preliminary reading on November 8, 2017, and supported by the government, which announced that it was going to submit a bill of its own. The government bill, which was passed in first reading on January 15, 2018, provided for the establishment of a search committee made up of the director-general of the ministry in which a legal adviser is to be appointed, who is to chair the committee; the attorney-general or his representative; the Civil Service commissioner or his representative; a representative of the general public, to be appointed by the committee’s chairman; and a representative from academia who specializes in law, to be chosen by the chairman and approved by the attorney-general.
Last Monday the government bill and Ohana’s bill came up for the first of many deliberations in the Knesset Constitution, Law and Justice Committee: the former bill in preparation for second and third readings, and the latter bill in preparation for first reading, though it is only the government bill that has any chance of ending up being enacted.
The committee meeting was attended by a large number of participants, including Shaked, who defended the government bill; Attorney-General Avichai Mandelblit; and former attorneys-general and retired Supreme Court justices Itzhak Zamir and Elyakim Rubinstein, all three of whom vehemently oppose the two bills.
Those who support the government bill and the PMB argue that the situation in recent decades impedes the government’s governability, since the legal advisers, who are allegedly professional and neutral, are able to prevent ministers from implementing their policies, and occasionally actually do so on the basis of their personal opinions. This is unacceptable, they say, since the legal advisers should help the ministers shape and implement their policies, and this can happen only if they work in close cooperation with their ministers, and have their full trust. It is therefore necessary that ministers should have a much greater say – supposedly a predominant say – in the selection of the legal advisers.
The proponents of the bill add that, due to the activism of the Supreme Court, there are situations where the whole legal system, including the legal advisers in the various ministries, are pitched against the wishes of the executive branch and the majority in the Knesset, and that this must stop.
Those who object to the bills argue that they seek to denude the ministerial legal advisers of their gatekeeping function, which is to ensure that the government’s policy is legal and constitutional and thus protect the democratic system. They especially object to the appointment system reverting to what it was in the more distant past, when most senior appointments were political. Though the government proposal is less objectionable than Ohana’s proposal, they point out that in the former’s proposed search committee, at least three members are representatives of the ministers.
I would add that if Prime Minister Benjamin Netanyahu gets his way and manages to have his candidate – Ofra Bracha – appointed as the next Civil Service commissioner (at the moment she is the only candidate, even though her only qualification for the job seems to be that Netanyahu wants her), then at least in the foreseeable future four of the five members of the search committee will be political appointees, leaving the attorney-general as the only politically neutral member of the committee.
Mandelblit courageously stated at the committee meeting last week that he knows of only one case in which a legal adviser managed to thwart the adoption and implementation of a policy promoted by a minister. In the absence of the full minutes of the meeting of the Constitution, Law and Justice Committee (they will be available in several weeks’ time), we do not know to what case Mandelblit was referring. It should be noted that since the proponents of the two bills avoid bringing concrete examples of where and when legal advisers have acted as claimed, it is very difficult to relate to the claim.
Shaked keeps stating that one should believe that the ministers are trustworthy, and should not be suspected of seeking to act in any way that does not correspond to the public interest and what they believe to be the desired policy. However, this claim is not convincing, since we know that ministers do not always act in the public interest, and that both political and personal considerations play a role in their appointments and decisions, as Netanyahu himself proved when he served as communications’ only minister earlier on in his current term of office.
None of this goes to say that the situation today is ideal, or that there is no place for improvement – especially with regard to limiting the term of legal advisers (today they can serve for an unlimited period) and providing solutions for situations in which there is an absence of trust and compatibility between a minister and his legal adviser, short of turning the legal advisers into nothing more than consiglieri.
However, the government bill as currently worded seems to be one small piece in a more general policy designed to weaken the gatekeepers and weaken one of the basic foundations of the Israeli democracy – its legal system – without which Israel could easily deteriorate in the future into authoritarianism, such as what is currently unraveling in Turkey.
I would add, however, that for the time being Shaked is playing the game fairly, listening carefully to what her opponents have to say, and treating them with due courtesy and respect. I just cannot help wondering whether she fully appreciates the ruinous consequences that could result from her bill actually turning into law.
A polite reply she sent to three former presidents of the Supreme Court – Meir Shamgar, Aharon Barak and Dorit Beinish – and another three former Supreme Court justices – Gavriel Bach, Zamir and Edna Arbel – at the end of August 2017, in response to a worried letter they had sent her in reaction to the law memorandum published by her ministry together with the original version of amendment 20 to the Civil Service (appointments) Law, suggests that she does not. (Shaked’s letter can be found on the website of the Knesset Constitution, Law and Justice Committee as accompanying material to its June 25 meeting.)