Judicial reform puts Israeli government above the law, deputy A-G says

The Knesset Constitution, Law and Justice Committee met regarding the law proposal to enable government ministers to ignore advice by their legal advisors.

 An empty Knesset plenum on October 4, 2021. (photo credit: NOAM MOSKOVICH)
An empty Knesset plenum on October 4, 2021.
(photo credit: NOAM MOSKOVICH)

"There is no option but to conclude that the proposal put before the [Knesset Committee] is de-facto a debate on the question of whether the government will stop being subject to the law," Deputy Attorney-General Gil Limon said during the Knesset Constitution, Law and Justice Committee session on Monday morning regarding the law proposal to enable government ministers to ignore the advice given to them by their legal advisors, as well as make the advisors personal appointments of the minister.

"In our opinion, the opinion of the Attorney General, the answer is clear – no," Limon added.

"If he who writes the law also controls whether or not to abide by the law, controls the appointments of judges that deal with the judicial purview of his decisions, and is able to override their rulings when they are not to his liking – in practice is not actually subject to the law. In this case, the government will not even be above the law – it will be the law," Limon added.

Limon's comments were met with harsh criticism from Justice Minister Yariv Levin, who attended the Knesset session.

Levin said that the "legal opinion that I am hearing here for the first time was written from a political position and not a clean position; you are not above the voters. No one chose you to determine what the public interest is," Levin said.

Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament, in Jerusalem on January 4, 2023. (credit: OLIVIER FITOUSSI/FLASH90)Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament, in Jerusalem on January 4, 2023. (credit: OLIVIER FITOUSSI/FLASH90)

"If he who writes the law also controls whether or not to abide by the law, controls the appointments of judges that deal with the judicial purview of his decisions, and is able to override their rulings when they are not to his liking – in practice is not actually subject to the law. In this case, the government will not even be above the law – it will be the law,"

Deputy Attorney-General Gil Limon

This session was the first debate on the first of the three laws

Under the title "'Zion will be delivered with justice' – returning justice to the judicial system," the session on Monday was the first debate regarding the first out of the three laws that will make up Levin's judicial reform. In addition to the ability to ignore legal advice and make the legal advisors personal appointments, the proposal stipulates that the government itself, and not its legal advisors, will decide what its legal position will be, and whoever represents the government in court will have to represent this position.

Last Wednesday, the committee chairman, Religious Zionist Party MK Simcha Rothman, published a draft of the law, after the committee's opposition MKs criticized him for there not being an actual text in front of them.

Knesset Legal Advisor Sagit Afek then criticized Rothman in a letter that the proposal he had published appeared to be a committee not personal proposal, but had not passed her team's purview as is necessary in such cases – and instead was compiled by Rothman legal advisor, lawyer Shimon Nataf.

Rothman responded by pointing out that the proposal was his alone and not the committee's, and in any case was only a "basis for discussion".

The opposition MKs on Monday thus criticized Rothman for not being clear about what they were actually discussing – an actual proposal, or a purely theoretical debate. The opposition MKs argued that they had not come to "play a part in a theatrical show" but expected to affect the law, and demanded that Rothman bring forth an official draft. Rothman in response said that he would do so, but that the current discussion was theoretical and was on the "Attorney General's monopoly" with the purpose of "making the legal advice to the government similar to that of the Knesset. He also said that the discussion was about whether or not Israeli ministers "had the power to carry out their policies" or were they handcuffed by the legal advisors' intervention.

What do the experts say?

A number of experts weighed in on the issue during the discussion.

Prof. Daniel Friedman, who also served in the past as justice minister and is a critic of judicial activism, supported parts of the proposal but expressed reservations on others.

Friedman agreed that the ministers should not be blocked from carrying out policy by the attorney-general or by one of the ministries' legal advisors, but insisted that the attorney-general's opinion should be binding for all of the other levels of the executive branch.

In cases where the attorney-general's opinion differs from the government, there should be a mechanism whereby she will be exempt from representing the government – but the government in such cases will not need the attorney-general's consent in order to hire a different lawyer.

Another former justice minister, Prof. Shimon Shetreet, was more critical.

Shetreet argued that while some parts of the reform were acceptable, but not in the current political climate.

"The political system is acting in a hurried, exaggerated, all-encompassing way, in an atmosphere of conflict and hostility towards the court system and the judicial system in general," Shetreet said.

To "drop" such a list of proposals that all are aimed at increasing the government's power at the judicial system's expense raised the concern that the intention here was not to reform but to weaken and destabilize the checks and balances that have existed in Israel for decades, Shetreet added.