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
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.
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
In Israel, intense judicialization of politics has made it
almost impossible for legislators or for the executive branch to make certain
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
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.
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
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.
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,
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
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
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.
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.
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
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
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”
problem with the current situation is not only that it is undemocratic – it also
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
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
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.