Cabinet okays forced retirement for government legal advisers, ignoring AG criticism
Ministers reportedly accuse advisers of acting like ‘gangsters,’ waging ‘war on the government’; attorney general says move is aimed at removing ‘gatekeepers’
The cabinet voted Sunday to implement a resolution that would force the retirement within the next 90 days of ministerial legal advisers who have served for more than seven years, despite opposition to the move by the Attorney General’s Office.
According to Hebrew media, the move would pave the way for the ouster of seven ministerial advisers, most notably Finance Ministry Legal Adviser Asi Messing, who has clashed with Finance Minister Bezalel Smotrich.
In a legal opinion Sunday morning, Attorney General Gali Baharav-Miara’s office stated that the government’s move was concerning because it could mean that it intends to remove officials who act as “gatekeepers.”
Cabinet ministers ultimately rejected the opinion, attacking the stances taken by current legal advisers during a heated cabinet meeting, according to quotes reported by Hebrew media outlets.
Regional Cooperation Minister David Amsalem accused them of acting “like gangsters,” according to the Ynet news site, while Justice Minister Yariv Levin claimed that they have acted in “breach of trust for 15 years” by not complying with a 2009 government decision — in line with the findings of the inter-ministerial Abramovich Commission — to limit their terms to seven years, which was never implemented.
While “there is no doubt that this is illegal conduct,” National Security Minister Itamar Ben Gvir reportedly argued during the meeting, focusing on it misses the main point, which is that the legal advisers have “declared war on the government.”
Earlier this month, Police Commissioner Daniel Levy, who falls under the purview of Ben Gvir’s ministry, backed down from a process he initiated to dismiss the force’s top legal adviser, after Baharav-Miara told him that his actions were illegal.
The coalition stated last year that, as part of its subsequently frozen judicial overhaul plan, it intended to reclassify ministry legal advisers from independent authorities to politically selected counsel whose opinions are explicitly non-binding upon the government and its ministers.
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.
Proponents of the judicial overhaul frequently chafe at the intervention of the attorney general and ministerial legal counsels, whom they say argue too much and frequently override the policy initiatives of elected ministers since their written positions are binding.
Critics of the government’s proposals for remaking the judicial system have warned that undermining the independence of ministry legal counsels would undercut an important check on executive power.
In its opinion, the Attorney General’s Office said the government resolution would harm the rule of law in government ministries, claiming that it is also designed to terminate the tenure of legal advisers who have clashed professionally with ministers over the legality of policies and actions sought by the elected official.
It added that due to the immediate manner in which these senior officials would have their tenure ended, the ministries in question — including the finance, welfare, education, immigration and absorption, diaspora, agriculture, and social equality ministries — would have to make do with acting legal advisers.
“This situation will greatly weaken the mechanism for observing the rule of law in these ministries, and create dependence between the [legal] gatekeepers and the political echelon,” the Attorney General’s Office wrote in a position paper to cabinet secretary Yossi Fuchs.
“There is a serious concern that this weakening of the gatekeeping mechanisms is not designed to serve a broad and proper purpose, but rather to ensure that position of certain legal advisers will end immediately due to their professional position against the [position of the] political ranks.”
According to Guy Lurie, a researcher at the Israel Democracy Institute, the cabinet’s approval of the move, as an administrative decision, does not require Knesset ratification, although there is a “good chance” that the matter will end up before the High Court.
Speaking with The Times of Israel, Lurie said that while, in principle, setting term limits could be a good thing if carried out through a professional process, the government’s decision was “very concerning” due to the political context in which it occurred.
More generally, “we can see this as part of the [overall] attempt of the government to undermine the attorney general and the legal advisers and their independence” while on a procedural level, the speed at which the decision was made to apparently “personally target legal advisers who are steadfast in their professional independence” is likely to mean that permanent replacements will not be immediately found and hired, he said.
As such, any temporary stand-ins “will be less independent” during their tenures.
