A Fresh Perspective: Who is the real ruler?

By
September 26, 2013 04:32

It is time to bring back legal advisers to an advisory role – not a decision- making role.




Netanyahu and Attorney-General Weinstein [file]

Netanyahu and Attorney-General Yehuda Weinstein 370. (photo credit: REUTERS)

One of the central questions that can help us understand whether a certain regime should be considered a democracy is: “Who is making the final decisions?” In a democracy, decisions are made by elected officials representing the people, thus allowing the people to rule themselves – even if it is done indirectly.

In a dictatorship, the people making the final decisions are not elected. In many dictatorships, you might still have elections, and even a functioning parliament. However, the final say on all issues is given to a supreme leader who is not elected. This leader can be a religious leader, such as the ayatollahs in the Islamic Republic of Iran. It can also be a secular leader, such as President Bashar Assad in Syria. However, this leader has the final veto power to decide what can or cannot be done.

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It is important to note right from the start that what defines a regime as truly democratic is not the content of the decisions; dictators can make good decisions, while democracies can lead to horrible decisions. However, what defines whether a regime is democratic is the identity of the person making the decisions.

In Israel, intense judicialization of politics has made it almost impossible for legislators or for the executive branch to make certain decisions.

This judicialization is characterized by increased intervention of the courts in political decisions, a phenomenon which was the subject of one of my previous columns. However, there is also another phenomenon which is no less important in this process, which takes power away from the elected officials and gives it to the bureaucratic branch of government. This phenomenon is the increased intervention of legal advisers in political decisions.

In this column, I want to look at the structure of the roles of legal advisers in Israel in order to understand how problematic it is and why it should be changed.

Veto power

Every government ministry in Israel has a legal adviser. This is also true in most other countries.

But the role of these legal advisers is defined very differently here in Israel.

There are various approaches to the roles of such advisers to governments. In the US, for example, legal advisers act as the lawyers of the secretaries for whom they work. Their job is thus to help these secretaries implement their policies, by finding ways to defend them against legal attacks. These lawyers come and go with the secretaries, since their role is deeply tied to their policies.

In most other countries, legal advisers to government are public service workers, who stay in government regardless of which government is in power. This is also the case in Israel. However, there is a big difference between what happens in other countries and what happens in Israel.

In other countries, legal advisers are there to advise officials as to what is legal and what is illegal.

Their advice is just what it sounds like: advice. The government can decide whether it wants to listen to this advice or not, knowing that if it doesn’t listen to the advice, it risks legal action in court. Of course, the government could have very good reasons not to listen to the advice of its lawyers, such as having received an alternative interpretation of the law which it feels is more accurate.

In Israel, legal advisers to government ministries have a formal veto power. This veto power was first established in a court decision and was then formalized in a directive by the attorney-general, which states: “The government is required to follow the directives of the legal adviser” (Directive 1.0000, February 16, 2003).

The effect of such a directive to democracy is clear. Decisions by the legal advisers are final. The government cannot decide anything which the adviser feels is illegal.

From legality to “reasonability” to “appropriateness”

If legal advisers in Israel would only comment on issues of law, then the problem we are describing would be minor. However, this is not the case anymore.

In the last decades, administrative law in Israel has expanded quickly with the development of the idea that when the government does something which is “unreasonable,” it is doing something illegal.

Of course, one central question comes up right away: Who is to decide if something is reasonable or not? If the government is doing something, it obviously believes it to be reasonable! Some people will say that courts are better equipped to decide if something is reasonable or not. I disagree with them. However, at least when there is a court case, we hear about it. There is transparency, and the courts in their decision let us know why they believe something to be unreasonable.

Moreover, courts decide on policies after they have been implemented, and therefore have an incentive not to call them unreasonable unless they have good reason to do so.

In Israel, before being permitted to implement a certain policy, the ministry needs to get it approved by the legal adviser – who, as we said, has veto power. This means that if the adviser finds something to be unreasonable, he can make it illegal and stop the policy from being implemented.

Let us ponder this for a moment: I happen to be right-wing and believe that it is completely unreasonable for a government in the Jewish state to kick out other Jews from their homes. If I am a legal adviser, am I really allowed to stop this policy from happening? Isn’t that a breach of the democratic regime? On the other hand, my leftist friends believe that building homes in Judea and Samaria is unreasonable.

Some of them happen to be legal advisers.

Are they to be empowered to stop such a policy just because of their role? What is even more shocking and problematic is that the process of expansion of this veto power did not stop at “reasonableness.” It has expanded even more.

Today, legal advisers feel free to use terms such as “unworthy,” “unsuitable” or “not appropriate” when giving their opinion on issues. For example, Yehuda Weinstein, the attorney-general and legal adviser to the government of Israel, wrote in an opinion on the candidacy of Rabbi Shmuel Eliyahu for Sephardi chief rabbi that the candidacy of this rabbi would be “unsuitable.” Rabbi Yuval Cherlow, who is known to have had many debates and arguments with Eliyahu, came out against the legal adviser and said Weinstein had “crossed some serious red lines.”

Not only do legal advisers have an unprecedented veto power that does not exist anywhere else in the world, this veto power is enhanced through the broad interpretation of administrative law in Israel via the concept of “reasonableness.”

On top of that, legal advisers use their powers to go against things which they feel are “unsuitable” – even if they are technically legal! One starts to ask himself, what power is left with elected officials, and how is Israel still to be considered a democracy?

Incentivizing “saying no”

The problem with the current situation is not only that it is undemocratic – it also hurts governability.

Studies in public policy have shown that one of the greatest obstacles to governability is the existence of veto players. This makes sense since when you have veto players, you can implement policies only when all are in agreement.

In Israel, with respect to legal advisers, the reality is even worse. Advisers are incentivized to say “no” to policy change.

The reason for this is simple. If legal advisers say “no” to a certain policy change, claiming it is illegal, their claims will never be put to the test. If they say “yes,” they risk having their claims tested in court, since individuals might bring this policy decision to the High Court of Justice to argue against its legality. Therefore, the only way they will ever be proven wrong is if they say “yes” when they should have said “no.” Saying “no” is always a safe bet.

This reality creates a situation where it is impossible for ministers to govern their ministries. The public is then mad at its elected officials because it feels like government is not doing anything to improve their lives, when in reality government cannot do anything significant since it is always stopped by its own legal advisers.

Would the State of Israel have been established?


Zvi Hauser, Prime Minister Binyamin Netanyahu’s former cabinet secretary, once argued in a lecture that if David Ben-Gurion were to decide on the establishment of the State of Israel today, it is unclear whether legal advisers would allow him to do so. They would start asking: “Is it allowed according to international law?” “Is it a ‘reasonable’ thing to do?” “Why are you declaring in Tel Aviv? It might discriminate against another place!” and numerous other questions.

The final result would be a decision by the advisers not to make such a declaration, and Ben-Gurion being forced to follow this advice.

This extreme example illustrates the deep problems with the current situation. Not only are our elected officials not the ones ruling us, but our government is also unable to function properly.

It is time for a change. It is time to bring back legal advisers to an advisory role – not a decision- making role. 

The writer is an attorney who graduated from McGill University Law School and Hebrew University’s honors graduate program in public policy. He is currently working as a research fellow at the Kohelet Policy Forum.


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