Israel’s government approved a measure on Sunday to end the service of seven ministerial legal advisers within 90 days, despite the attorney-general’s office deeming the measure “not legally viable” and based on “foreign interests,” including removing restrictions on government power.
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 advisers before they leave office and enable the advisers to apply for other government jobs in the six months following their removal; in “extraordinary cases,” a legal adviser’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 advisers’ tenures will be limited to seven years. The purpose of the decision at the time was to prevent the hiring and firing of legal advisers from becoming politically dependent, and thus it would ensure their independence as gatekeepers. However, the 2009 decision was never implemented after the legal advisers 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. The attorney-general, CSC, and finance ministry officials had recently compiled a different proposal that included a gradual end to the legal advisers’ employment and a pension arrangement that they would likely accept.
Legal problems with the proposal
The proposal being brought before the government, however, included severe procedural and substantive legal problems, the A-G wrote. The first was related to employment laws.
According to the A-G’s office, the short 14-day period to find a “financial agreement” was unrealistic; the 90-day deadline would not enable a proper transfer of authorities to new legal advisers, thus harming 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 advisers 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 these problems “raised a real concern that at the source of the proposal, there are foreign interests whose purpose is to end the service of specific legal advisers...and bring about the weakening of the public legal advisers’ department.”
Legal advisers report to the directors-general of the ministries they serve, but they are professionally subject to the attorney-general’s office. The legal advisers in question, who would be affected by the government proposal, are from the ministries of finance, welfare, education, aliyah and integration, diaspora, social equality, and agriculture.
During his tenure, the finance ministry’s legal adviser, Adv. Asi Messing, repeatedly thwarted government attempts to circumvent decisions by the High Court of Justice or Attorney-General Gali Baharav-Miara. Many of these attempts were related to the haredi (ultra-Orthodox) sector, including the funding of private haredi school systems with public funds, despite their not meeting requisite criteria; the continuation of funding for haredi yeshiva students despite their avoidance of a legal requirement to enlist in the IDF; and more.
In a statement following the decision, Finance Minister Bezalel Smotrich accused the legal advisers of “defending illegal conduct” since the government’s 2009 decision.
“For 15 years, the legal advisers in the Civil Service Commission, Ministry of Finance, and State Attorney’s Office have been defending illegal conduct and operating under a ‘you scratch my back; I’ll scratch yours’ system,” Smotrich wrote. “Instead of implementing the 2009 government decision that established the need to limit legal advisers’ terms and defined it as a clear public interest, they are working to thwart it out of personal interest."
“They are entrenching themselves in their positions, refusing to reach fair financial arrangements, and acting in clear bad faith - all this with the aim of remaining in their positions and imposing themselves on the ministries while exploiting the system to extort millions of shekels for their private gain at the expense of Israeli citizens,” Smotrich continued.
“Instead of promoting transparency and public accountability, they are sabotaging the principles of the rule of law and clinging to their positions to maintain their power – in complete contradiction to the government’s decision and public will.
“Today the government put an end to this and passed a definitive decision on limiting the terms of legal advisers whose tenure has expired,” Smotrich concluded.
Notably, Foreign Minister Gideon Sa’ar, until recently a harsh critic of the government’s attitude toward the attorney-general’s office and other gatekeepers, said he supported the measure, despite the A-G’s position.
Sa’ar argued that the A-G’s office was the body 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 advisers were putting their “personal benefit” before the “public good” and that not implementing the seven-year cap on the advisers’ service due to “personal matters” was “unreasonable.” Sa’ar added that the A-G ruling that a government measure was illegal was a “doomsday decision” that should not be used regularly and should not 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 up with a financial agreement. Sa’ar therefore proposed that this period be extended to make the measure legally viable