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Unrestrained Ministers: Abolishment and Demotion of Independent Legal Counsels

>> Read the full Position Paper

On 4 January 2023, Justice Minister Yariv Levin revealed his plan to change the regime in the State of Israel by crushing the independence of the judiciary and fully subordinating it to the executive branch, which already fully controls the legislative branch. In order to implement this revolution, Levin announced a package of legislative amendments including a clause to override Supreme Court decisions by a slim majority of 61 MKs, increasing the number of politicians in the Judicial Appointments Committee, ending the standard invoked by the Supreme Court to overrule government decisions deemed unreasonable, and making legal counsels of government ministries positions of trust. Retired Supreme Court President Aharon Barak called Minister Levin’s plan a collection of “all the bad proposals made over the years” equivalent to a “revolution with tanks.

This Position paper which was submitted to the Constitution Committee of the Knesset Zulat’s position is stated It is stated that  Minister Levin’s proposal resembles previous suggestions by the Right to make legal counsels positions of trust to be filled at a minister’s discretion, thereby facilitating their firing in the event of disagreement. However, Levin’s proposal goes even further, as it does not content itself with changing the hiring and firing method but, by default, explicitly turns a minister into his own/the ministry’s legal counsel, given that neither would be obligated by the counsel’s advice, nor would it in any way change the legal situation. Ministers would be entitled to reject a counsel’s advice, act in contravention to it, and decide themselves the ministry’s position to be presented to any judicial authority.

devastating consequences of the proposed amendment:

  1. It will destroy the independence of legal counsels and eliminate their role as “gatekeepers” with the authority to prevent the ministry/minister from carrying out actions that run contrary to the law, court rulings, and proper management.
  2. It will severely damage the status of the Attorney General, given that his/her guidelines will be ignored and contravened as a result of the operation of a separate legal counseling system in every government ministry.
  3. It will expand corruption, conflicts of interest, lawlessness, and mismanagement in the operation of government ministries.
  4. It will turn legal counseling into political and elastic appointments, given that counsels who fail “to deliver the goods” will be summarily replaced and will have to live with the constant threat of impending firing. Indeed, we saw this happening in the Finance Ministry under Yisrael Katz’s tenure. Legal counsel Assi Messing wrote an opinion nixing Katz’s choice of director general on the grounds that he did not meet the minimum requirements for the job. In response, Katz refrained from consulting Messing on relevant issues and refused to let him attend work meetings. On 12 November 2020, Katz published the following post on his Facebook page: “As I have made clear in the past, civil servants who seek to sabotage the policy I am leading in the Finance Ministry, in accordance with the mandate we received from the electorate, the door is open for them to leave. There are many worthy replacements who will only be too happy to fill their place.”
  5. It will thoroughly damage the functioning of ministries: Hiring legal counsels without a tender will lead not only to the selection of non-independent staff, but also to the employment of unsuitable legal counsels lacking the minimum requirements stipulated by the Civil Service Commission in terms of professional and managerial experience. In this context, it should be emphazied that the role of legal counsel is not only to give advice to the ministry’s top brass regarding reforms and matters of interest and under the minister’s direct jurisdiction, but also to manage the legal bureau’s staff and to provide guidance on the legality and proper management of the ministry’s daily work, projects, and affiliate bodies and companies with regard to commitments, contracts, and budgets, as well as on any legal proceedings.
  6. Hiring legal counsels will squander public funds, given that a minister will be his ministry’s supreme legal authority. In other words, legal counsels will not even have a role as “rubber stamps.”
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Dr. Maha Sabbah Karkabi

 

Senior Lecturer in the Department of Sociology and Anthropology, Ben-Gurion University of the Negev. She holds a Ph.D. in Sociology from Tel Aviv University (2015), a postdoctoral fellowship at the Center for Gender Studies, SOAS, University of London (2015-2016), a postdoctoral fellowship in the Department of Sociology at Tel Aviv University (2016-2017), and a postdoctoral fellowship Ph.D. at the Humphrey Institute for Social Research, Ben-Gurion University of the Negev (2018-2020).
Dr. Maha Karbahi’s areas of interest focus on the connection between social change, family behavior, and gender inequality in societies in the process of change and specifically in Palestinian Arab society in Israel. Her research draws attention to the study of family life and employment, using a combined “ethnic lens” and “gender lens” and paying attention to the perspective of Palestinian Arab women, a group characterized by intersections between multiple marginal locations, which over the years has remained hidden from the research eye. Dr. Karkabi-Sabah’s research is published in professional journals and chapters in scientific books that are considered pioneers in family research, work, and gender equality.

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Prof. Frances Raday

Professor Emeritus in the Lieberman Chair in Labor Law, in the Faculty of Law at the Hebrew University and serves as a full professor in the College of Management’s academic track, where she also serves as chair of the graduate program and as honorary president of the Concord Center for International Law Absorption. Radai was a member of a working group of the UN Human Rights Council on discrimination against women. In addition, she is a prominent and feminist human rights activist.

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Dr. Rawia Aburabia 

Faculty member of Sapir Academic College’s School of Law, received her PhD from the Hebrew University of Jerusalem. Her research deals with the interface between law, gender, minorities, and human rights. Has published in leading journals on the subject of the matrimonial laws pertaining to Muslim women in Israel. Her book Under the Law, Outside Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law is expected to be published as part of the Gender Series of Kibbutz Meuhad Publishing House.

Dr. Aburabia has extensive experience in international human rights and public law. She has worked as a jurist for the Association for Civil Right and has been invited as a specialist to address such international forums as the United Nations and the European Parliament on the subject of indigenous communities and minority rights. She has interned with Human Rights Watch in Washington DC, and has been a member of the executive board of Amnesty International. In 2018, she was selected by the magazine Globes as one of the 40 most promising young persons in Israel under the age of 40.

 

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Ron Kessler

With over two decades of experience in the field of digital content, Ron has participated in numerous political and social campaigns. He helped run the digital activity of senior public officials, and worked in various NGOs. Ron is a fundamentally optimistic man, who believes that Israel can be changed and so can people. Lives in Tel Aviv.