AG concerned procedural shortcuts being used to pass illegal cabinet resolutions

Ministers have been voting on legally problematic additions to resolutions in an expedited process without the necessary legal evaluation, writes Deputy Attorney General Gil Limon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Prime Minister Benjamin Netanyahu leads a cabinet meeting at Hakirya base in Tel Aviv on January 7, 2024. (Yariv Katz/POOL)
Prime Minister Benjamin Netanyahu leads a cabinet meeting at Hakirya base in Tel Aviv on January 7, 2024. (Yariv Katz/POOL)

The Attorney General’s Office strongly criticized procedural shortcuts taken recently in the cabinet and key government committees, which it said “raised concerns” that they were being used to pass legally problematic government resolutions.

Writing to Cabinet Secretary Yossi Fuchs on Sunday, Deputy Attorney General Gil Limon said that several supplementary provisions had been made to the text of government resolutions in recent months without having been properly reviewed by the government’s legal advisory departments, or even seen prior to the meetings by the cabinet ministers voting on the resolutions.

He said this raised concerns that these tactics were being used either to circumvent proper procedure or to have resolutions approved that Justice Ministry lawyers have determined suffer from legal impediments.

This, said Limon, runs contrary to the public interest and the rule of law in government work.

The deputy attorney general called out in particular supplementary provisions to a government resolution brought last week by Finance Minister Bezalel Smotrich regarding the entrance of foreign workers into Israel.

In a fierce riposte to the attorney general, Fuchs insisted that no government resolution had been passed during the term of the current government without the necessary legal requirements, and lambasted Limon for what he claimed was his office’s effort to assert authority over the government’s decision making process.

Deputy Attorney General Gil Limon attends a Knesset Constitution, Law and Justice Committee hearing on the government’s bill to limit the courts’ use of the unreasonableness doctrine, July 4, 2023. (Yonatan Sindel/Flash90)

Government resolutions are a form of executive action where the government can determine policy in situations where legislation is not needed.

“Recently, a number of incidents took place, including during cabinet meetings and ministerial committee meetings, in which significant supplementary provisions to the government resolution under discussion were brought for debate, and even completely new resolutions, which had not been previously distributed to ministers,” Limon wrote.

“These resolutions were approved without the necessary professional or legal work having been conducted before being brought for debate, and by extension without the necessary factual or legal infrastructure having been presented to the ministers, which is needed for taking a decision.”

Limon pointed to an incident on February 4 in which Smotrich introduced “significant additions” to a proposed government resolution on expediting the construction of residential housing.

Smotrich presented the additions to the cabinet orally, when the prime minister and most of the other cabinet ministers had already left the meeting.

Representatives of the Attorney General’s Office in the room at the time said voting on the additions was not possible since it had previously been determined that there was a definitive legal obstacle to one of the supplementary provisions, and serious legal problems with two others that needed deeper evaluation.

The supplementary provisions with the legal obstacle was meant to allow foreign workers to be brought to Israel privately, but it lacked stipulations necessary to prevent human trafficking.

It was nevertheless approved by the cabinet, along with one of the other legally problematic supplementary provisions.

Cabinet secretary Yossi Fuchs arrives for a cabinet meeting at the Prime Minister’s Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

“Bringing substantive government resolutions for the cabinet’s approval during a cabinet meeting without the necessary professional and legal infrastructure… or worse, when it has been stated that there is a legal impediment to doing so, contravenes the principle of the rule of law in governmental work,” Limon said.

“It is invalid, and is likely to bring about problems with the implementation of the resolution, or to [a situation] in which the governments passes illegal resolutions.”

Limon concluded that failure to follow proper procedures in cabinet “undermines the assumption of legitimacy for government actions,” and added that decisions taken “in contravention” of the relevant principles would need to be brought back to the cabinet for a new vote after proper evaluation and debate.

In his response later on Sunday, Fuchs insisted that the Attorney General’s Office had no authority to require that a vote on an already-approved government resolution be taken again, in reference to Limon’s assertion that such a measure would need to be taken for resolutions passed in a deficient manner.

“In total contrast to your claims, I have not even once violated the regulations for government procedures,” wrote Fuchs.

Responding to Limon’s allegations regarding the government resolution on housing construction, Fuchs insisted that although some ministers took a break from the meeting, they returned in order to participate in the discussion on the supplementary provisions, and said that the attorney general’s concerns with the measure were presented to the cabinet ministers at that time.

“The fact that the government chose not to accept the position of the Attorney General’s Office is not a blemish in the process but a consequence of [the fact] that the authority [over the] decision is of the government and not of the attorney general,” wrote Fuchs.

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