Mandelblit: Legal advisor bill could seriously damage rule of law
During heated debate at Knesset’s Constitution Committee, attorney general warns against ‘bad’ proposal aimed at changing selection process of ministries’ legal advisors, saying it could harm gatekeepers; MKs slam Justice Minister Shaked, who says ministers should be involved in their legal advisors’ appointment.
According to the proposal, instead of an appointment taking place through a tender, in which a minister is unable to influence the outcome of the nomination, candidates will be selected by a search committee and will require the consent of the relevant minister and the attorney general.
Mandelblit however, has been forthright in stating his fierce opposition to the proposal which he deems inappropriate, which Shaked argues will serve to strengthen methods of governance tighten the link between the minister and the implementation of policy which he or she was elected to implement.
Former Attorney General Yitzhak Zamir warned at the start of the meeting, “There is a serious danger in this proposal. As a person with a lot of knowledge on this issue, I beg you, for the State of Israel’s sake as a law-abiding state, do not promote this bill.”
The proposal’s opponents, led by Mandelblit, believe the new appointment method will seriously weaken the gatekeepers, as the selection will be made by the political echelon, politicize the legal advisory in every ministry and convey a negative message to the professional gatekeepers.
The justice minister explained that “the appointments will be professional. A minister and a director-general know how to select a good legal advisor, just like the Civil Service Commission. I want legal advisors not to be appointed according to their opinions.”
One of the Knesset members interrupted her by shouting, “We’ve seen how you appoint judges.”
Shaked continued, “I expect the appointment of legal advisors who perceive the position the way I have defined it—implementing the minister’s policy under the law, rather than their own policy. I expect that when the minister is replaced, that legal advisor will implement the policy of the new minister. An advisor selected by the minister will be as brave and professional as an advisor selected in a tender.
“The minister should be involved in the appointment,” she added. “I don’t think ministers should have to influence a certain tender in the dark.”
Former attorney generals arrived to support Mandelblit’s stance. Mandelblit noted that “protecting the rule of law is the attorney general’s main job.”
He stressed the importance of “separating between the decisionmakers and the clerks at the ministries, even if he doesn’t agree with them personally. Civil service is professional and apolitical. It is my duty to warn you if the rule of law could be harmed.”
Mandelblit made a distinction between the appointment of judges and the appointment of legal advisors. “It’s important that the advisor works in harmony with the minister and director-general. But it will become clear to the future generation which should try to compete and get elected that standing up to a minister will eliminate their chance of getting elected, as a minister clearly won’t want to work with an advisor who will tell him that things are wrong. It will make it very difficult to insist on the second part of the gatekeeper’s role. It will cause great damage.”
He added that there was a concern that the advisors’ image would suffer, as “they will now be perceived by the public, Heaven forbid, as someone who was appointed by a minister because he is close to him. That’s not a good thing and it’s unnecessary.”
The entire legal community is against this bill’
Prof. Zamir said, “I am hear because I think this bill is nothing less than critical. It seriously threatens the rule of law and the state. I don’t remember a bill which I think could damage the rule of law. The stance I am presenting is not my own. It’s supported by the entire legal community.”
Zamir quoted a comment made by Shaked in an interview, in which she said the legal advisors were doing their job faithfully and she didn’t think there was a problem. “If this is the justice minister’s opinion, why change? If the system is working, why fix it?” he asked. “It’s not that their suggesting a replacement of one method with another. The proposed method contradicts a basic principle of the rule of law. It’s unthinkable that the reviewed party will appoint the reviewer.”
Zamir was joined by former Attorney General Elyakim Rubinstein, who said: “If the familiar and favored system works, why change it? In all my years as attorney general and as a judge, I haven’t seen the legal advisory torpedo a policy, but rather serve a policy. The minister said so herself.
“There is no room for these proposals,” he added. “Politicization of legal service is unhealthy. It’s a slippery slope. Things are working and everyone should do their job.”
Mandelblit send the Constitution Committee an 11-page document on Sunday, voicing his strong opposition to the suggested amendment. Mandelblit is supported by some of Israel’s leading jurists, who have sent Prime Minister Benjamin Netanyahu a letter on the matter, including Meir Shamgar, Aharon Barak, Dorit Beinisch, Yitzhak Zamir, Edna Arbel and Gabriel Bach.
Constitution Committee Chairman Nissan Slomiansky said ahead of the discussion, “Today’s situation makes it difficult for the ministers to execute the policy they were elected for. We have to find a better balance and allow the ministers to govern without harming the legal advisors’ independence as gatekeepers.”
The bill states that “the suggested process is in no way different from the professional selection procedure of other professionals in the ministries, who are also appointed through a search committee and whose nomination is approved by the government or the ministers.”