A government proposal to end the service of seven different ministerial legal advisors is illegal, and based on "foreign interests" geared towards removing restrictions on government power, the Attorney General's Office wrote in a legal opinion on Sunday morning.
The legal opinion came hours before the government was set to vote in its weekly meeting on a measure that would end the employment of the legal advisors within 90 days. According to the measure, the Civil Service Commissioner's (CSC) office together with finance ministry representatives will come up with a "financial agreement" for the legal advisors for when they leave office; enables the advisors to apply to other government jobs in the six months following their removal; and, in "extraordinary cases," a legal advisor's tenure can be extended at the request of the Director-General of the ministry in question.
The measure is based on a government decision from 2009 that the legal advisors' tenures will be limited to seven years. The purpose of the decision at the time was to prevent the hiring and firing of legal advisors to be politically dependent, and thus ensure their independence as gatekeepers. However, the 2009 decision was never implemented after the legal advisors failed to reach a negotiated agreement with government representatives.
According to the attorney general's office, the proposal came as a surprise to the professional bodies involved in the issue, which has been ongoing for years. CSC and finance ministry officials had recently compiled a different proposal that included a gradual end to the legal advisors' employment and a pension arrangement, and that the legal advisors were likely to accept.
Legal problems to the proposal
The proposal being brought before the government, however, included severe procedural and substantive legal problems, the AG wrote. The first was related to employment laws. According to the AG's office, the short 14-day period to find a "financial agreement" was unrealistic; the 90-day deadline would not enable proper transfer of authorities to new legal advisors and thus harm their ability to oversee the legality of government actions; the proposal was compiled by the government secretary, who is not authorized to do so; the "extraordinary cases" would make legal advisors who stay in their positions dependent on the minister for their employment, which contradicts the purpose of the 2009 government decision; and more.
The attorney general's office said that these problems "raised a real concern (and even more than that) that at the source of the proposal there are foreign interests, whose purpose is to end the service of specific legal advisors … and to bring about the weakening of the public legal advisors' department."
Legal advisors report to the directors-general of the ministry they serve in, but are professionally subject to the attorney general's office. The legal advisors in question who would be affected by the government proposal are of the ministries of finance, welfare, education, aliyah and integration, diaspora, social equality, and agriculture.
The legal advisor of the finance ministry, Adv. Asi Messing, repeatedly thwarted attempts by the government to circumvent decisions by the High Court of Justice or by Attorney-General Gali Baharav-Miara, by passing illegal measures. Many of these attempts were related to the haredi sector – including attempts to fund private haredi school systems with public funds despite them not meeting requisite criteria; attempts to continue funding haredi yeshiva students despite them avoiding a legal requirement to enlist in the IDF; and more.
Foreign Minister Gideon Sa'ar, who served as justice minister between 2021-2022 and oversaw Baharav-Miara's appointment, questioned the attorney general's office's position. Sa'ar argued that the AG's office was the body that was responsible for the 15-year delay in implementing the 2009 government decision and that it was "inconceivable" that the decision has yet to be implemented.
Sa'ar argued that the legal advisors were putting their "personal benefit" before the "public good," and that not implementing the seven-year cap on the advisors' service due to "personal matters" was "unreasonable." Sa'ar added that the AG ruling that a government measure was illegal was a "doomsday decision" that should not be used regularly and should have been used in this case.
According to Sa'ar, Deputy Attorney-General Sharon Afek said at the meeting that the only problem with the government was "the timetable," i.e. the 14 days given to the CSC and the finance ministry officials to come with a financial agreement. Sa'ar therefore proposed that this period be extended into make the measure justifiable, and said he would support it.