Ex-AG accuses government of ‘attempted regime coup’ over private counsel maneuver
Avichai Mandelblit makes accusation 2 days after the government defied the AG and allowed ministries and IDF to bypass her position on drafting of Haredi students, yeshiva funding
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Former attorney general Avichai Mandelblit accused the government on Thursday of attempting to carry out a “regime coup” over its unilateral move to enable its ministries and agencies to bypass Attorney General Gali Baharav-Miara in High Court petitions on the volatile matter of drafting ultra-Orthodox men and funding Haredi yeshivas.
On Tuesday, the government overturned a decision by Baharav-Miara and asserted that the bodies could have private legal counsel in the petitions.
Mandelblit said the move “eliminated” the state legal advisory system and the protection it provided to the rule of law, and would allow the government to ignore the legal advice from that system — and the attorney general at its top — which has been a key component of Israeli law for decades.
The former attorney general and one-time ally of Prime Minister Benjamin Netanyahu told Army Radio that the government decision would in theory allow the government to ignore Baharav-Miara’s position that the government must cease funding ultra-Orthodox yeshivas and begin drafting their students, a stance that has enraged the Haredi coalition parties after a decades-long legal clash with the nation’s top court.
“Seemingly he [the private legal counsel] could tell the army what to do and the Defense Ministry what to do,” asserted Mandelblit.
“This is in practice the eradication of the legal advisory system and the nullification of the first and central line of defense of democracy in the State of Israel.” He called the move “regime coup in the extreme,” carried out undercover.
The April 30 decision asserted that the Defense Ministry, Education Ministry and Israel Defense Forces could take private legal counsel to represent the government in its contention that it can keep funding ultra-Orthodox yeshivas for students who are legally obligated to enlist in the IDF and avoid drafting these young men until the Knesset passes a new law regulating those policies.
The law allowing for blanket military service exemptions for Haredi yeshiva students expired in June 2023, and a government resolution instructing the IDF not to enforce conscription on such men expired on April 1.
The High Court of Justice issued an interim order on March 28 that state funding for Haredi yeshivas for students who would be obligated to enlist must be frozen, and that there was no longer any legal framework to not draft eligible Haredi men to the IDF.
This presented a massive political problem for Netanyahu and his coalition, since he does not have a majority without the ultra-Orthodox parties for whom the blanket exemptions from military service and yeshiva funding are critical priorities.
The attorney general firmly opposes the government’s position that it may continue its previous policies in the interim period before a new law has been passed, and has described it as having no legal basis since the legal framework which previously enabled those policies no longer exists. However, she has allowed the government as a whole to take private legal counsel to present that position in the High Court of Justice.
Deputy Attorney General Gil Limon had told the government in a letter on April 21 that while Baharav-Miara had approved the government’s request for private legal counsel on the matter, this approval did not extend to the Defense Ministry, Education Ministry and IDF, whom he said would be represented by the State Attorney’s Office, as is usual.
Regardless, the government approved decision 1724 on Tuesday through a rarely used administrative mechanism that prevented the Attorney General’s Office from having any input on the matter.
On Wednesday, Limon wrote a furious letter to the government saying that the decision “distorted” Baharav-Miara’s approval for private legal counsel.
“Practically speaking, the result of making the relevant government agencies subject to the representation of a private attorney is that they will receive a rubber stamp to act in accordance with the position of the government… that is to say, to refrain from acting to draft [ultra-Orthodox] yeshiva students and to continue monetary support [to the yeshivas] at the same level,” Limon wrote.
“This course of action is a continuation of the attempt, which is part of what was called the ‘legal reform,’ to weaken the status of the attorney general, bypass her, and harm her ability to protect the public interest and the rule of law,” Limon told Government Secretary Yossi Fuchs.
Dr. Guy Lurie of the Israel Democracy Institute explained that by extending the private legal counsel to the relevant ministries and the IDF, which are involved in drafting citizens into the army and paying yeshivas, the government was essentially asserting that the attorney general’s position does not reflect the law for those agencies.
As such, they might now feel free to continue adhering to the policies of the government if the government’s private legal counsel says they are legitimate.
And Lurie concurred with Mandelblit’s assessment of the government’s maneuver, and that of Limon and the attorney general herself, that the government decision asserting the right to private counsel for the government ministries and the IDF represented a severe danger to the standing of the legal advisory system in general.
“If the government can say it can have private counsel whenever it wants, then it can bypass the attorney general’s position whenever it wants, whereas the attorney general’s position has been seen for decades as reflecting what the law is until the High Court says otherwise,” said Lurie.
One of the key pillars of the government’s controversial judicial overhaul agenda, which it advanced last year, was to make the position of the attorney general and the ministerial legal advisers — who are subject to the attorney general — non-binding, in order to allow ministers to act as they wish even if told by such advisers that their actions violate the law.
“The government’s decision taken two days ago ignored the law and the ruling of the Supreme Court… in serious violation of the rule of law,” said Lurie. “This is an illegal and shameless move.”
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