Opposition, AG try to block gov't 'power grab' over legal system

The central question is whether ministerial control over government lawyer appointments will merely appropriately bring legal advice more in line with ministers’ goals or whether it will eliminate legal advisers’ gatekeeper capacity to stop illegal populist actions.

By
November 6, 2018 17:42
3 minute read.
Attorney-General Avichai Mandelblit

Attorney-General Avichai Mandelblit . (photo credit: MARC ISRAEL SELLEM)

 
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Knesset members of the opposition and Attorney-General Avichai Mandelblit tried to block what they saw as a power grab by government ministers to gain greater control over government lawyers.

Mandelblit’s criticism on Tuesday of the bill – which is being debated in the Knesset Constitution, Law and Justice Committee – has been unusually vehement, with him framing it as a “great danger” to the rule of law.

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The central question is whether ministerial control over government lawyer appointments will merely bring legal advice more in line with ministers’ goals or whether it will eliminate legal advisers’ gatekeeper capacity to stop illegal populist actions.

Supporters say that current legal advisers are too detached from the will of the average citizen and their representatives in the government. Opponents say the bill would politicize legal advisers and remove some of the last checks and balances that are designed to preserve the rule of law in a parliamentary system that has few restrictions over the ruling coalition.

Currently, legal advisers are selected by a professional, lawyer-dominated committee, after the position is made available to the general public. The bill would still have a committee recommend candidates, but would leave the final decision to the relevant minister.

Opposition leader Tzipi Livni of the Zionist Union, Yesh Atid MK Yael German, Joint List MK Dov Henin and several others slammed the bill as moving on the road to fascism and destroying the rule of law. Others argued that the bill has no purpose. Although Justice Minister Ayelet Shaked has been a sponsor of the bill, she admitted that most of the current legal advisers are doing their jobs well.

Supporters of the bill – like Bayit Yehudi MK Bezalel Smotrich, Likud MK Meir Ohana and Kohelet legal division head Dr. Aviad Bakshi – said that the opposition is exaggerating by assuming that any political appointment was inherently corrupt.

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In the past, Shaked has said that politicians should be trusted, “are not corrupt” and will not appoint “a Sancho Panza” type character as a legal adviser. Bakshi challenged the idea that government lawyers should even fulfill the role of gatekeepers for the rule of law. He said that courts should perform this function and government lawyers should seek to find ways to facilitate their ministers’ policies.

Mandelblit in the past has said that he favors the view of government lawyers trying to support ministers’ policies as a general matter.

However, at the same time, he has said that these lawyers still must wear a second hat to serve as gatekeepers to block a range of actions regarding which courts either cannot intervene or where the time it takes them to act makes their intervention too little too late.

Kulanu MK Roy Folkman appeared on the fence regarding the bill, suggesting he might only support it if there were some changes, such as that the committee accepting the legal adviser candidates must vote them in by a minimum of 4-1.

Crucially, the Israel Bar Association, often viewed as a neutral body, surprisingly said nothing at the hearing. According to reports, the lawyers’ group was originally opposed to the bill, but has gone silent so as not anger Shaked during a time period when the group’s president, Efi Naveh, needs her support as he is likely to be indicted for tampering with border control rules.

In June, a range of former attorneys-general and Supreme Court justices stridently criticized the bill at a committee hearing.

In contrast, Shaked at the time said that some of the same former attorneys-general who oppose the bill had themselves been appointed in a fashion that was more controlled by politicians, and that they had nevertheless been strong appointments.

She added that she was mostly suggesting a return to an old system which had worked for years.

The change from the old system for appointing the attorney-general to the current system came in the wake of the “Bar-On affair” in which it was alleged that a potential candidate for attorney-general was being pushed forward as part of improper political horse-trading, including influencing criminal investigations.

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