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.

Supreme Court case law relating to security issues and the Occupied Territories: Position Paper #20

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 position paper we examine the case law of the Israeli Supreme Court relating to security and the occupied territories.

We find that:

● The Israeli Supreme Court rarely intervenes and practices extreme restraint as concerns government measures in security matters or in matters relating to Israel’s policy in the occupied territories.

● Presenting the Supreme Court’s involvement as ‘restrictive’ in a manner which impedes the government’s ability to act is mistaken and misleading.

● Empirical studies over recent decades indicate that despite using human rights rhetoric, the Supreme Court rarely strikes down policy concerning the conduct of hostilities or  counterterrorism measures.

● Insofar as concerns active fighting and use of lethal force, the Supreme Court has not restrained the government in a significant manner.

● The Supreme Court has refused to decide on the legality of the settlement policy, effectively  paving the way to the expansion of the settlement policy by Israeli governments. .

● For decades the Supreme Court has been interpreting the international norms applicable to the occupied territories in a manner which grants the government broad powers, often in contravention of the accepted understanding of these norms in the international community.

position paper 20 - security.pdf

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Proposal to Amend the Police Ordinance: Summary of Position Paper #17

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 generals and legal advisors, and to violate human rights.

In this position paper, we examine the attack on the Department of Internal Police Investigations. We see grave danger in the proposed bill to amend the Police Ordinance (“Department of Internal Police Investigations (DIPI) Law”).[1]  This proposal is another tier in the abolition of the rule of law and in politicization of the legal system as a whole, and raises concern that this is only the first instance of political intervention in criminal law enforcement in Israel.[2]

As detailed herein, each component of the bill separately does not achieve the bill’s stated purpose as set out in the explanatory notes, but rather will lead to the opposite result. Namely, rather than allowing unbiased investigations and prosecutions, the bill positively ensures bias in DIPI’s operations and undue influence on the prosecution authorities. Taken together, the components of the bill present a clear and unambiguous picture: passing this bill will cause significant erosion in the independence of the prosecution, enable politicians to intervene in the enforcement of criminal law, politicize the management and operation of the DIPI, and impair the fight against corruption. Furthermore, the bill does not advance any of the objectives worthy of correction concerning the DIPI’s operation, such as, first and foremost, ensuring equality before the law.

The bill cannot be viewed separately from the general legislative landscape, and the legislation dealing with law enforcement in particular. The previous amendment to the Police Ordinance involved the "Ben-Gvir Law",[3] and the two amendments together constitute apparent steps toward the politicization of the entire law enforcement system. The essence of the said amendment (the Ben-Gvir Law) involves subordinating the police to the Minister of National Security, and provides extraordinary, explicit and detailed provisions concerning the minister’s authority to set police policy, without ensuring the police any countering independent professional discretion. This is compounded by the fundamental changes planned in the process of the appointment of judges and legal advisors, which will also lead to similar results. Thus, examining all the legislation together, clarifies the overarching goal: the politicization of the criminal law enforcement system, which jeopardizes the system’s chief values, most notably equality before the law.

[1]A bill to amend the Police Ordinance (Department of Internal Investigations) 2022 passed a preliminary reading on February 22, 2023.

[2] This is not an exhaustive review, but rather an initial response to the bill only. Of note, however, is the global trend of transferring the handling of complaints against the police to independent entities, rather than to political actors. See Guy Lurie, “An Accountability Deficit in the System for Dealing with Complaints against the Police in Israel,” 4 Law, Society and Culture 451 (2021) [Hebrew]; see also Itay Fidelman, “Actors for the Investigation of Police Officers – A Comparative Review”, Knesset Research and Information Center Report (2015) [Hebrew], which relates, for example, to the situation in New Zealand, where the authority’s independence is entrenched in legislation to ensure accountability to Parliament (and not to a government body), and whose law prohibits political involvement in the authority’s activities.

[3]Amendment to the Police Ordinance (No. 37), 2022.