The Blogs: Why I support the 2023 Israeli Judicial Reform (3)

צדק צדק תרדוף

Sound Management (Government) Principles

The good news is that there is no need to invest in the Peter Drucker Library or any similar textbook on modern management. It is all in the Torah: In a flash of genius, Yitro explained to Moses what structure he needed to implement to properly manage the growing Hebrew population as they came out of Egypt and inundated him with their needs, questions, and requests. By doing so, some 3463 years ago, Yitro forever established the foundations of modern age management (Exodus 18:13-27). Under the guise of “delegation”, three concepts emerge as you read carefully these verses: (1) Authority, (2) Responsibility and (3) accountability. To make things simple, at any level of hierarchy, be it in the corporate world or in a democratic government structure, one derives his (her) authority by delegation from his (her) superiors, he (she) is given the responsibility (i.e. the means) to conduct his (her) tasks, and he (she) is accountable for the proper completion of said tasks (i.e. will be rewarded or penalized by the echelon above on that basis). Keep these in mind as we look into the roles of the Attorney General and of the Government Legal Advisors in Israeli politics in this third installment of my “Why I support the 2023 Israeli Judicial Reform” essay.

The Attorney General and the Legal Advisors

In many countries in the world, and in particular in the UK, the US and Canada, countries that are generally viewed as role models for democratic governance, the Attorney General (or equivalent) is an appointed government member, with a rank of minister or similar.

In an ideal world, actual government members with real portfolio responsibilities (finance, commerce, interior, security, etc..) have authority over their assigned portfolio, are given the means to fulfill their objectives and are held accountable to their superiors for the actions within their portfolio.

By contrast, the attorney General, in the countries mentioned above and many others, the legal advisors, and in general all advisors and consultants are appointed on a purely consultative basis. They derive their legitimacy from their expertise in specific areas (finance, law, technology, etc..). They usually have little authority, narrow focus responsibility and little to no accountability. Their actions, opinions or statements have no binding power over the government, and in general their stated positions reflect the government stated positions. Attorney Generals are nominated by the top executive in the country (President or Prime Minister) and confirmed by the senate or other democratically elected, representative body. An Office of the Legal Counsel operates by delegation from the Attorney General and advises various executive branches upon request.

Israel seems to be a completely unique case. The Attorney General (AG) is nominated by a wide panel in which elected officials are a minority, and confirmed by the Justice Minister for a unique 6 years mandate during which he or she appears to be accountable to no-one. A similar panel also appoints Ministerial Legal Advisors that operate in seemingly complete independence from the Executive Branch they are attached to. In fact, they openly view their role as much as an advisor as a gate-keeper with binding decision ability with regards to any action or decision taken by their executive branch. Add to this a 7-year term of office with limited dismissal ability and you understand that the concept of accountability does not apply to them.

The AG is the only authorized interpreter of the law for the government. His (her) interpretations are not just advice, they are binding. Which means that the AG has a broad license to overturn or modify any law, decree or decision made by the Executive Branch with almost no avenue for the Government to assess its role as the duly elected manager of the land. This, in and of itself, is a denial of democracy.

Furthermore, the AG is the only person who may represent the Government, as a whole, in part or as individuals before the courts of law. The AG is also the only one who can determine what government position should be presented to said court of law: choosing a plea, selecting a line of defense, actually pleading in court, etc.. To assist in these tasks, the AG has at his service legal advisors, reporting to him, with similar prerogatives in all or most government cabinets.

The concept of Due Process is defined in the fifth and the fourteenth amendment of the US constitution. This is one of the most important US legal concepts, invoked on a daily basis across the Federation in protecting all those who are facing legal proceedings. Similar rights have been part of the British Law since the 14^th century and the Magna Carta. The substantially similar « droit à un procès équitable » summarizes since 1988 the 6^th article of the Convention européenne de sauvegarde des droits de l’homme thereby enforcing this concept of due process throughout the 26 countries of the EU.

Due Process, although it has been extensively discussed in the early 1950’s during the attempt to draft a constitution for Israel, is not a part of Israeli law today. As explained by Guy Lurie et al. in their 2021 paper “Proposed Basic Law: the Right to Due Process”, this concept has been called upon by the Israeli Supreme Court as a derivative of the Basic Law: Human Dignity and Liberty, 1992. The authors further explain that, because it is not anchored in its own specific Basic Law, it is subject to “disproportionate infringement of these rights”.

In my opinion, the relationship and the respective roles of the executives and the Legal Advisors create an indubitable spoliation of the right to Due Process that the Government agencies, branches and individuals are entitled to. How is it possible that a non-elected political power (one could call it a shadow executive branch) with virtually unlimited assumed authority and seemingly little to no accountability can dictate how and what the executive branch can do, thereby delaying or impeding government actions in a totally undemocratic manner. And to make things totally irrational, if and when the Government has to defend itself with regards to these decisions, the same so-called advisors are the only ones who can choose if and how to conduct this defense. To say this in simpler terms, this deprives the accused of his right to a fair trial.

This situation has little to do with democracy, it is simply a legal nonsense.

It is my understanding that, among other changes, the reform proposed by the governing coalition has three objectives: 1- Introduce democratic principles in the appointment of the AG and legal advisors, 2- Remove the binding nature of the advisor’s opinions and 3- Eliminate the concept of exclusive representation in both its aspects (Representation itself and Positioning). I believe these changes will lead to the development of a constructive relationship between the Executive and the Judicial branches for the greater good of Israel and its citizens. This is very far from being a turn towards dictatorship as we hear so often in the streets today. In fact, it will be quite the opposite.

Where do we go from here?

I was educated as an engineer, I lived (most of) my life as an engineer. I try to rationalize what I see and I tend to over-analyze everything. Right or wrong, that’s just the way I think. However, in a situation of almost total impasse, when roads to compromise are few and far between and especially when the stakes are very high, like the future of our beloved country, it is essential to go back to basics. To look at the facts. To read and listen-to rather than interpret the words. To make sure we all attach similar understanding to such obvious concepts as Democracy (and Dictature), Justice, human rights and citizen’s duties. To remove personal attacks from our thinking process. To separate fake news from verifiable facts. And last but not least to think about the unique but fragile place of Israel in the world as the sole homeland of the Jews.

May The Holly One Blessed Be He guide our people, our representatives and our leaders on the path to unity, justice, peace and brotherly respect.