Appointments now!

At the Israel Bar Association’s annual legal conference last Thursday, Speaker of the Knesset Yariv Levin told the journalist Tal Shalev that “the process for appointing the Knesset legal adviser is fundamentally flawed and problematic.” But when asked whether he would promote the appointment of a legal adviser under the existing process he responded: “Well, I have no choice, because I obey the law.”

One may disagree with Levin’s position on the need to change the process for appointing the legal adviser to the Knesset, which is currently based on the work of a mostly professional search committee (made of three members of Knesset and four external members). Still, he should be congratulated for the non-partisan approach evident in his response to Shalev, in which he said that “the adviser needs to serve the entire Knesset,” and not just the speaker or the coalition. Moreover, his statement indicating that he is currently obligated by law to work toward the appointment of a legal adviser following the existing appointment procedure, despite his opposition to it, should not be taken for granted — especially in the current climate. It reflects the internalization of his obligations as senior official in a state governed by the rule of law.

It is of great concern that the government of Israel has failed to internalize this basic principle of being required by law to appoint senior officials. For a long time now, a long list of key positions have been filled by temporary substitutes, including the Police Commissioner, the Prison Service Commissioner (both  since December 2018), the State Attorney (since December 2019), and the chair of the Israel Cable and Satellite Authority (since September, 2018). This is an unprecedented and intolerable state of affairs, as a result of which vital public systems are dysfunctional.

As a matter of course, temporary substitutes do not have a mandate to implement long-term reforms in their organizations. Moreover, because they are not appointed through a serious vetting process, their suitability for the position is often questioned, and their legitimacy for wielding state power is questionable. This problem is particularly acute when it comes to senior positions in law enforcement agencies—such as the Police Commissioner and the State Attorney—who are required to act independently of the political echelon. When there is no permanent appointment to these roles, the independence of temporary substitutes is regarded as limited in nature, and their decisions are liable to be perceived by some segments of the public as being driven by a desire to ingratiate themselves with politicians, who have the authority to make their position permanent.

While in the recent past it may have been possible to attribute the postponement of these senior appointments to political instability and to a series of transition governments (though even these governments can approve appointments defined as essential, under certain conditions), since the formation of the current government, such justifications are no longer valid. Political disagreements between the Likud and Blue and White over changes to the appointment processes are no excuse for holding vital government systems as “hostage”.

It is important to note that the government is legally obligated to use its governing powers according to the accepted rules of public law in Israel, and to appoint officials in a non-arbitrary way and in a timely fashion. This obligation was the basis for the criticism voiced by the Supreme Court justices while hearing the appeals against the section of the coalition agreement regarding a freeze on senior appointments, following which the duration of this freeze was cut back from six months to 100 days and made subject to a “critical need” exception.

Under these circumstances, a political decision to refrain from making essential appointments even after the period of 100 days stipulated in the coalition agreement has run out is likely to be viewed by the court as illegal behavior on the part of the government. This conclusion is reinforced by the suspicion that the postponement is linked to a desire to influence the criminal proceedings against Prime Minister Netanyahu through changing the appointments process. These concerns militate in favor of holding that any future change should not apply to the current round of appointments to positions in the law enforcement system.

At the end of the day, what the speaker of the Knesset understands and has internalized well, must be internalized by the entire government. It must make appointments to essential national positions without delay, based on the process currently determined by law and stipulated in government resolutions, and subject to the rules of administrative law banning conflicts of interest. Any further delay in order to make it possible to engage in political deal-making would be tainted by illegality. Both the rule of law, and the obligation to serve the public interest with well-functioning public systems, demand that permanent appointments to senior positions be made immediately, all the more so against the backdrop of the current coronavirus crisis.

About the Author
Professor Yuval Shany is a vice-president of Research at the Israel Democracy Institute, and a member of the Faculty of Law of the Hebrew University of Jerusalem.
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