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Is Israel's justice minister determined to undermine the judicial system?

Justice Minister Ayelet Shaked's proposal to let Israeli ministries select their own legal advisers reflects an alarmingly undemocratic political trend.
Israeli Justice minister Ayelet Shaked delivers a speech during the swearing-in ceremony for the incoming Israeli president of the Supreme Court, Esther Hayut, at the Israeli Presidential residence in Jerusalem on October 26, 2017.  / AFP PHOTO / THOMAS COEX        (Photo credit should read THOMAS COEX/AFP/Getty Images)

The Knesset’s Justice Committee hasn’t had a meeting like Monday's in a very long time. On June 25, Justice Minister Ayelet Shaked of HaBayit HaYehudi submitted legislation that would allow each minister to select the legal adviser for his ministry. She faced opposition from three senior figures — the current and two former attorney generals. In the administrative hierarchy of government, the current attorney general serves under the minister.

Justices Yitzhak Zamir and Elyakim Rubinstein do not visit the Knesset frequently, while the current attorney general, Avichai Mandelblit, is very uncomfortable with situations in which he opposes the justice minister’s position, especially when he rejects it so firmly and so publicly. The three of them cannot be accused of engaging in some political conspiracy. They have very different worldviews, so that their appearance together at the meeting gave a sense that a red line is being crossed.

The whole story seems to be about a rather obscure procedural issue. Today, each ministry’s legal counselor is selected on the basis of tenders. Shaked wants to change this, giving the task to search committees on which the minister would have significant representation. The search committees would recommend candidates to the minister, who would then bring the appointment to the government for approval. In this way, the attorney chosen for the position would be sure to implement the minister’s policies and defend those policies in the courts.

It seems to make sense to have legal advisers in place to defend the minister’s policies. In practice, however, this is a revolutionary change to the current understanding of the legal adviser’s role. As of now, it is an independent position, answering to the attorney general. While the role of legal counsel is to assist the minister on legal issues, the position also serves as a kind of gatekeeper in the ministry. The legal adviser's role is not limited to determining whether a decision is legal or illegal, but involves considering the wider implications of various decisions, subject to court rulings and compared to similar cases around the world. They must also consider who could potentially be harmed by a ministerial decision or proposed legislation.

This week, the News Company released transcripts of recorded conversations that took place in 2010 between Shlomit Barnea Farago, who served as legal adviser in the prime minister’s office, and Nir Hefetz, a former media consultant to Prime Minister Benjamin Netanyahu and now a state witness while the prime minister is being investigated. These conversations paint a dismal picture of a legal adviser already practically spineless when dealing with Netanyahu and his wife and facing great difficulty in commenting on their behavior, even regarding diverting state funds for the maintenance of their private home in Caesarea. In the transcripts, Barnea Farago admitted that she knows that if she is openly critical of the Netanyahus’ behavior, she will face chilly relations with the prime minister. If legal advisers are handpicked by the minister himself or his representatives, this situation will only get worse. In that case, the legal advisers’ sole role would be to grant their imprimatur to questionable behavior.

It was a bit strange to hear the justice minister defend her position by saying things like “We are not criminals.” The current government includes a convicted felon who was reinstated at the scene of the crime (Interior Minister Aryeh Deri), a minister of welfare that the state attorney general is planning to indict for bribery (Haim Katz) and of course the prime minister himself, whom the police have recommended be indicted for bribery, and whose wife is facing trial for fraud. It's very difficult to describe the members of the current government as clean or to blame their legal advisers for keeping them from doing their jobs.

No one would suggest that Shaked arrived at the Justice Ministry without an agenda. She wants to diminish the stature of these gatekeepers and increase the playing field for elected officials in the Knesset and the government, based on the belief that professionals like judges, legal advisers, the state comptroller or others were not elected by the people, so they should not be allowed to undermine decisions by elected officials. Based on this approach, Shaked has already announced that she would work to appoint religious and conservative judges. She has already succeeded in changing the character of officials serving in various capacities in Israeli courts by promoting the appointment of several judges. She wants to transform the attorney general and the legal advisers serving in each ministry from gatekeepers watching for questionable behavior into personal confidants of the ministers.

There is another important political aspect to this proposed legislation. As legal restrictions loosen, it will be easier to turn the occupied territories into an integral part of Israel without officially annexing them.

But a democracy without gatekeepers cannot survive for long.

The alarms raised by the distinguished guests invited to attend the Justice Committee meeting were telling. Mandelblit warned that legal advisers would lose their independence. Zamir made an impassioned declaration, saying, “I am here because in my opinion, this proposed legislation is nothing less than momentous. It will have an enormous impact on the functioning of the state as well as on the character of the state as a state of law.” Rubinstein warned of the slippery slope that comes with the politicization of public service.

For the past three years, Israel has been engaged in an important debate about the nature of its form of government. HaBayit HaYehudi did not come up with the idea of limiting the roles of legal officers, effectively making them little more than bureaucrats. Still, there can be no doubt that Shaked and the chair of her party, Naftali Bennett, have added a certain level of sophistication to this approach, whose academic supporters include former Justice Minister Daniel Friedman. Shaked is not proposing that the Supreme Court be bulldozed, as did another member of her party, Knesset member Motti Yogev, in 2015. However, through the regularization law, which will make it possible to confiscate privately owned Palestinian land in the West Bank, and other laws being passed, she is attempting to change the very character of Israeli society, even if it comes at the expense of Israel’s Jewish majority and the country’s international status. Individually, every suggestion she makes could be discussed ad nauseam. The problem is that taken together, all of these measures cannot ease the concerns of those people worried about the fate of Israeli democracy. The cries of alarm by the retired judges are only the beginning.

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