Bill would allow ministry legal advisers to make only non-binding recommendations
First draft of legislation seeks to restrict judicial officials’ independence, pave way for ministers to hire their lawyers of choice to defend policy
Carrie Keller-Lynn is a political and legal correspondent for The Times of Israel
In its latest judicial reform step, the coalition made public on Thursday a draft bill to reclassify ministry legal advisers from independent authorities to politically selected counsel whose opinions are explicitly non-binding upon the government and its ministers.
Put forward by the Knesset’s Constitution, Law, and Justice Committee, the bill to amend Basic Law: The Government would sideline Justice Ministry influence upon the government and its legal stances. Debate will begin on Monday, according to committee chair Simcha Rothman.
The bill is part of a larger judicial reform bid that would increase the power of the Knesset at the expense of the judicial system, an overhaul decried by the attorney general, former justices and senior judicial officials, and opposition leaders as endangering democracy and civil liberties. Reform architect Justice Minister Yariv Levin claims the changes are necessary to strengthen democracy by increasing the power of the people’s elected representatives, and Prime Minister Benjamin Netanyahu firmly backs his initiatives, saying they will restore a proper balance between public authorities.
The draft bill submitted by the Constitution Committee on Thursday states that the government, the prime minister, and all cabinet members “are authorized to determine the legal position of their offices or civil authorities under their authority on legal matters, in general or in a specific instance.”
“Legal advice given to the government” or to “the prime minister and all government ministers, will not obligate it or be able to alter its legal position,” it notes.
Similarly, the cabinet and its ministers are “authorized to reject legal advice and operate against it.”
Currently, each ministry’s legal adviser falls under the aegis of the attorney general to preserve their independence from political influence, and their advice is binding upon ministries.
Netanyahu’s Likud and its far-right and religious allies in government promised to reset the balance of power between politicians and judicial authorities during the run-up to November’s election that returned them to power.
The current proposal goes further than Likud’s election promise to transform legal advisers into “positions of trust,” meaning that they could be hired and fired at government whim; this bill would change the legal status of their advice.
The bill would also permit ministers to choose any lawyer, including a private lawyer, to represent their office in any hearing, thus helping politicians evade a Justice Ministry check against putting forward policies that the ministry does not support and declines to defend.
Basic Laws hold quasi-constitutional status, and the meaning of that status is currently under debate between the courts and Levin’s reform package. On Wednesday evening, Levin shared a draft of broad changes to the Basic Law: The Judiciary, which include a provision to block the High Court of Justice from discussing and invalidating Basic Laws.
If this passes and remains unchallenged, this means that the Constitution Committee’s proposal to rewrite the job description of ministry legal advisers could be untouchable by the court.
The attorney general’s office did not immediately respond to a request for comment.