Israeli Justice Minister Opposes Letting Government Jurists Act as 'Gatekeepers'

The role of the Attorney General’s Office has never been defined in legislation. But the Supreme Court has defined it as a 'gatekeeper,' ruling that the AG’s legal decisions are binding – a view Shaked rejects

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Israeli minister of Justice Ayelet Shaked (R) arrives ahead of the weekly cabinet meeting at the Prime Minister's office in Jerusalem September 12, 2018.
Israeli minister of Justice Ayelet Shaked (R) arrives ahead of the weekly cabinet meeting at the Prime Minister's office in Jerusalem September 12, 2018.Credit: Thomas Coex/Pool via Reuters

Justice Minister Ayelet Shaked is demanding the revocation of a guideline that defines a key ministry department as a “gatekeeper” and grants the attorney general the right to veto government proposals, even though she initially supported it.

The newly issued guidelines governing the Attorney General’s Office and its various departments were written by Deputy Attorney General Avi Licht, who recently retired, and published as an 84-page booklet. In his introduction, Licht thanked various people, including “the justice minister, who approved and supported” his work. But the reference to Shaked’s support has since been removed from the online version.

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The booklet defines the job of the ministry’s legal advice and legislation department as “giving effective, professional legal advice to advance the government’s policies. In this context, it will be a gatekeeper to ensure that government activity is conducted within the law ... to protect human rights, to protect the public interest and Israel’s fundamental values as a Jewish and democratic state.”

In the section titled “General Principles,” the booklet reiterates the department’s dual role – “to give the government appropriate legal tools to advance its policies and to be gatekeepers who ensure that government activity is conducted according to the law.”

Later, it elaborates on the gatekeeper function, saying, “Our role is also to present policy makers with the limits of the law and serve as a gatekeeper and a public trustee to ensure that government activity is conducted within the law. Our obligation to protect the limits of the law stems from our moral role of being entrusted with upholding the rule of law. ... Our job isn’t limited to determining what is forbidden or permitted to the authorities; we must protect the public interest, especially on matters related to good government, defending human rights and issues deriving from the fact that a public agency is the public’s trustee.”

But after the booklet was printed and distributed to Knesset members, Shaked feared being identified with guidelines that assign the department an activist role when her right-wing base wants it reined in.

“In the final stages of the guidelines’ preparation, the minister revoked her consent to them, so the guidelines were issued only on the attorney general’s behalf,” one source said, adding that Shaked backtracked because the guidelines allow the department “to say there’s a legal barrier to taking a certain step. The very fact that a bureaucrat can say something is legal or illegal, even if it’s only in very clear cases, was something she couldn’t see herself as part of.”

The status and role of the Attorney General’s Office has never been defined in legislation. But the Supreme Court has defined it as a gatekeeper and ruled that the attorney general’s legal decisions are binding on the government – a view Shaked and her colleagues on the right oppose.

Shaked’s office said the new guidelines have many good points, “like the fact that it changes the accustomed practice under which deputy attorneys general had veto power over draft laws.” But she refused to sign the finished product due to “her disagreement with various statements in it. The formulation of the jurist’s role, including his being a ‘gatekeeper,’ is among these problematic statements.”

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