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 law that applies to civil servants in a constitutional crisis.
We hold that:
● All civil servants must abide by the law.
● The Supreme Court is the authorized interpreter of the law in Israel. Therefore the Supreme Court’s interpretation is binding upon on all public authorities in the country. Any other interpretation by the government is not a binding interpretation of the law. Civil servants are not allowed to obey an instruction that contradicts the law as interpreted by the court.
● Unless instructed otherwise by the court, civil servants must act in accordance with the law as interpreted by Israel’s Attorney General.
● Civil servants who do not comply with court orders are acting in contempt of the court, even if they are following the Minister’s instructions.
● Civil servants might be held criminally responsible when acting on instructions of their supervisors if their acts do not accord with the law as interpreted by the Supreme Court or the Attorney General. They might be held criminally responsible even for acts which do accord with the law as interpreted by the Supreme Court or the Attorney General, if such an act is “manifestly illegal”.