Reported plan to curb ministry legal advisers would ‘crush’ democracy, says ex-AG

Mandeblit warns proposed bill will erode counsels’ ability to act as a gatekeeper and prevent illegal acts from being committed, since they’ll be pushed to show loyalty to minister

Former attorney general Avichai Mandelblit at a conference of the Association of Corporate Counsel, in Tel Aviv, June 29, 2021. (Tomer Neuberg/Flash90)
Former attorney general Avichai Mandelblit at a conference of the Association of Corporate Counsel, in Tel Aviv, June 29, 2021. (Tomer Neuberg/Flash90)

Former attorney general Avichai Mandelblit, a vocal critic of the government’s ongoing effort to radically overhaul the judiciary, railed on Monday against a reported coalition plan to soon advance a key, divisive bill in the legislative package once the Knesset reconvenes for its summer session at the end of the month.

In an interview with Channel 12, Mandelblit said the hardline coalition’s bill to severely limit the power of ministry legal counsels would “crush the first line of defense for Israeli democracy.”

“The duty of the public service legal advisers is first and foremost to the State of Israel and not personally to the minister,” Mandelblit said, arguing that the reported legislation would erode the advisers’ ability to act as a gatekeeper and prevent illegal acts from being committed.

Mandelblit, who was appointed by Prime Minister Benjamin Netanyahu before going on to file a criminal indictment against the premier, has repeatedly slammed the Netanyahu government’s broader judicial overhaul and has said if the proposed plans pass into law, “Israel will cease being a democracy.”

According to a Channel 12 report on Sunday, the coalition intends to soon put forth the most extreme version of the legal counsel bill, which would transform legal advisers and their positions from professional authorities to discretionary positions. The bill would enable ministers to appoint — and fire — their own legal advisers, and also to make legal counsels’ positions non-binding on ministers and the cabinet.

Currently, each ministry’s legal counsel falls under the aegis of the attorney general, to preserve their independence from political influence, and their positions are binding upon ministries. Proponents of the overhaul frequently chafe at the intervention of the attorney general and ministerial legal counsels, whom they say argue too easily and frequently override the policy initiatives of elected ministers since their written positions are binding on the government.

Then-prime minister Benjamin Netanyahu and then-newly appointed cabinet secretary Avichai Mandelblit attend the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem on June 9, 2013. (Marc Israel Sellem/POOL/FLASH90)

Critics of the government’s proposals for remaking the judicial system have warned that curbing the independence of ministry legal counsels would undercut an important check on executive power.

The Sunday report said the coalition would seek to pass this legislation regardless of current, ongoing negotiations with the opposition in a bid to reach a compromise on the judicial shake-up. Netanyahu paused the legislation late last month to allow for dialogue on the proposals but coalition members have indicated their determination to see the judicial overhaul through, despite the compromise talks.

The TV report noted that the legislation, if passed, would allow Netanyahu to remove the legal adviser at the Prime Minister’s Office, Shlomit Barnea Farago, who he has clashed with overspending and the return of state gifts.

In his Monday interview, Mandelblit explained that there were previous iterations of this specific bill that were fended off. He said one version of the “extreme” bill from about five years ago drew intervention from former chief justices Aharon Barak, Elyakim Rubinstein, and Meir Shamgar, who “came to the Knesset” in order to “fight the bill,” a period of time Mandelblit referred to as a “defining event” during his tenure as attorney general.

Mandelblit also referred to a previous private bill by Likud’s Amir Ohana, currently the Knesset speaker, that would’ve mandated a ministry legal adviser to “act to implement [a] minister’s instructions” and would obligate the adviser “to fulfill their basic duty of safeguarding and protecting the interests of the state.” Another proposal, by former justice minister Ayelet Shaked, which Mandeblidt described as completely different but “also not necessarily good,” would have given more “weight to the political echelon,” while protections would’ve remained in place. It too did not move forward.

The bill in its current form, warned Mandelblit, will all but incline ministry legal advisers to be “personally loyal” to the ministers whom they serve and the counsels would not be required to report any dubious activity to the attorney general.

The current proposals could lead to “serious malfunctions,” he said, since “80 or 90 percent of the decisions are made at the ministry level and not at the government level. As long as [the legal adviser] doesn’t warn [the attorney general] about [seemingly illicit] conduct, no one will even know that something illegal is taking place.”

Prime Minister Benjamin Netanyahu, left, with Justice Minister Yariv Levin in the Knesset on March 27, 2023. (Yonatan Sindel/Flash90)

According to the coalition’s yet-to-be-publicized proposal, if a legal advisor alerts the attorney general of suspected wrongdoing, “the minister will simply fire [them]. This is what is going to happen, and it is something that greatly endangers the rule of law in the State of Israel and the protection of the state…as a liberal democracy.”

Such conduct would allow for a situation where there would “no longer [be] a [set] term for a legal adviser. [They] will be appointed for an indefinite period of time, and as soon as the minister changes, the legal adviser will also change.”

“The levels of protection of democracy in the State of Israel are not among the best [as is]. We don’t have a constitution, we don’t have two houses of parliament, we don’t have a federal and regional system of government,” explained Mandelblit. In the eyes of the state’s founders, the “two lines of defense” were the Attorney General’s Office and the High Court of Justice.

Mandelblit said the legal counsel bill is no less dangerous than efforts to curb the powers of the court and bring most judicial appointments under political control. ​

“It is possible that to a large extent, it is more serious because most cases do not reach the Supreme Court but are closed within the government ministries. If legal advisors aren’t able to act independently, it endangers the rule of law along with liberal, democratic values.”

Attorney General Gali Baharav-Miara has warned that the coalition’s current package of legislation would hand the government virtually unrestrained power, without providing any institutional protections for individual rights.

The plans have drawn intense public criticism and sparked massive protests for the past 15 weeks since their unveiling.

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