Public Service in Times of Constitutional Crisis: Summary of Position Paper #25

The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this paper we examine the considerations and principles relating to public service in times of constitutional crisis.

We hold that:

● At a time of constitutional crisis two different branches of government claim to have the power to determine fundamental arrangements in the state. In such a situation, public servants do not know whose instructions to follow.

● The decision whose instructions to follow relies, in our view, on two types of considerations: One, an evaluation of who is authorized to determine the law; the other, the obligation to provide equal and optimal service to the state’s population.

● The manner in which public servants act in circumstances of constitutional crisis depends, inter alia, on whether their conduct directly affects the democratic rules of the game, on the institution in which they operate, on their rank within the institution and on the avenues of action available to them. As a rule, public servants should follow the instructions of the Attorney-General and of the Supreme Court. However, this rule might change if conditions change, and in particular if the independence of the Attorney-General or of the Supreme Court is undermined.

Subordination of the Civil Administration to the Ministry of Defense: Position Paper #24

The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this paper we examine the implications of the agreement subordinating the Civil Administration to the Additional Minister in the Ministry of Defense.

Position paper 24 eng 230210

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Changes to Attorney General and Government Legal Advisors Status: Summary of Position Paper #1

The Israeli Law Professors’ Forum for Democracy, an ad-hoc and voluntary group of experts on Israeli law, and specifically Israeli public law, expresses its grave concern due to the unprecedented attack on the rule of law and democracy in Israel, following the intention of Israel’s 37th Government to undermine the independence of the judiciary and to significantly diminish the role of the Attorney General and government legal advisors as gatekeepers.

Specifically, the Forum warns against the proposed amendment to ‘Basic Law: The Government’, presented by the Chair of the Knesset’s “Constitution, Law, and Justice” Committee.

The proposed legislation revokes the status of the Attorney General and government legal advisors as the authorized interpreters of the law for public authorities, makes the status of their legal opinions non-binding, and allows state officials broad access to private legal advice and representation before courts at will. These changes will enable the government and its ministers to exercise their powers in violation of the law, and may foster governmental corruption and endanger social and economic stability.

The gatekeeping role of professional and independent legal advisors has traditionally enabled Israeli courts to minimize their interference in governmental decision-making, and has provided international credibility to the actions of the State of Israel. The proposed legislation will eradicate both important advantages. It will enable the government to act in complete disregard of a determination by government legal advisors that a governmental action is illegal, placing the government above the law.

The Forum’s opinion, expressed in our full position paper, constitutes our urgent reaction to an agenda presented by the “Constitution, Law, and Justice” Committee Chair, an agenda which according to Israel’s Legal advisor to the Knesset, was misleadingly presented as an official bill, although it was drafted without the involvement of the Committee’s legal advisory team, in stark contrast to accepted legislative practice. Although we strongly protest the flawed procedure through which the proposal is being advanced, we present in the paper our position addressing its content. We further stress that this specific proposal is but one component of a host of far-reaching constitutional and legal changes which we understand as an intentional attack on Israel’s democratic character and on the independence of Israel’s Supreme Court, aimed at concentrating unlimited power in the hands of the majority. We vehemently oppose these processes, and our position paper should be understood accordingly.

A detailed position paper in Hebrew is available on our website.