High Court Judge: Science Minister May Use Political Considerations in Appointments

A hearing was held over Science Minister Akunis’ nixing of left-wing professor’s appointment to panel ■ Attorney general Mandelbilt refused to represent him

Science Minister Akunis at a hearing against his decision to remove a left-wing professor from panel, November 11, 2018
Olivier Fitoussi

The High Court of Justice on Sunday allowed Science Minister Ofir Akunis to represent himself at a hearing on one of his decisions, after Attorney General Avichai Mendelblit refused to represent him because he considered Akunis’ decision improper.

The court was hearing a petition against Akunis’ decision to veto the appointment of a leading brain researcher, Professor Yael Amitai, to the board of the German-Israeli Foundation for Scientific Research and Development, owing to a petition she signed in 2005 supporting students who refused to do military service in the West Bank.

Mendelblit argued that Akunis has no authority to veto a professional appointment for political reasons and therefore refused to represent him. But the justices, in an unusual move, accepted Akunis’ request to be allowed to represent himself.

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At the end of the hearing, they issued a show-cause order against his decision, indicating that they think the petition has merit. They also barred Akunis from appointing anyone else to the position until the case is concluded.

But during the hearing they challenged both the petitioners and Mendelblit’s representative over why they thought Akunis had exceeded his authority, given that by law, the minister is the person in charge of making this appointment.

“Why did they give this power to the minister instead of giving it to the Council for Higher Education?” demanded Justice Alex Stein.

“The fact that the minister was given the power doesn’t mean he can weigh political considerations,” replied Mendelblit’s representative, Jonathan Nadav.

But Stein disagreed. “Akunis does have the authority to weigh political considerations,” he said. “The legislator chose to give the appointment power to the minister, and the legislator presumably knows that the minister is a political figure.”

Sunday’s hearing took place after the justices last week objected to the lack of representation for Akunis. This is a sharp deviation from decades of precedent holding that only the attorney general can speak for the state, and that his position is binding on the government – which means that if he disagrees with the government’s position, then the government has no representation in court. The government cannot even hire an outside lawyer without the attorney general’s consent, and traditionally, attorneys general have granted such consent only rarely.

In the brief it submitted to the court last week, Mendelblit’s office said Akunis’ decision was unreasonable and legally indefensible. It therefore urged the court to grant the petition, which was filed by a committee comprised of the heads of all the country’s universities.

At a hearing later that week, state attorney Aner Hellman said Mendelblit decided not to let Akunis hire a private lawyer because that is permissible only in “extremely exceptional circumstances,” and this case involves no such circumstances.

But Stein challenged that view.

“Representation in court is very important,” he said. “Take, for instance, another case, in which a defendant who clearly committed the crime he was charged with is told by his lawyer, ‘Confess to the crime or I won’t represent you.’ Then he’d go to another lawyer. Did you give the minister the option of representing himself if he disagrees with your view – and he is permitted to disagree?”

The justices also challenged the prosecution’s claim that there’s no dispute over the facts of the case. “The basis of your position is the view that this happened 13 years ago, but the minister says, ‘No, it’s fresh from the oven,’” said Justice David Mintz, referring to Akunis’ claim that Amitai has repeated the views expressed in that 2005 petition in media interviews over the past few months.

During Sunday’s hearing, Akunis quoted from some of those interviews.

“When Prof. Amitai is asked about representing the state, she says, ‘I don’t represent the state,’” Akunis said. And in fact, he added, when she calls for refusing to serve in the territories, “which is a call to commit a crime, and certainly a violation of the law, her position doesn’t represent the state. I can’t sign off on the appointment of a professor, however professional and respected she is, who says this explicitly.”

Attorney Rachel Ben Ari, representing the committee of university heads, accused Akunis of quoting selectively from the interview. “She meant that she isn’t taking on a public position that’s supposed to serve as a kind of ambassador for Israel,” Ben Ari said. She then quoted Amitai as saying later in the interview, “I’m certainly part of the country and part of the reality for the purpose of determining who deserves to get research grants from the joint foundation.”

Two weeks after Akunis nixed the appointment this summer, Mendelblit urged him to retract the decision, saying that signing a petition 13 years ago shouldn’t disqualify Amitai from the post and that he would have trouble defending Akunis’ position in court. Akunis initially said he would respect the attorney general’s decision, but then changed his mind.

The prosecution’s view, as stated in its brief, is that Amitai is slated to fill “a completely professional scientific position, a field that prima facie doesn’t involve considerations of political or diplomatic policy.”

Moreover, it said, the petition Amitai signed doesn’t call on anybody to refuse to serve or violate the law in any other way. It merely “expresses support for students and faculty who decided of their own accord not to serve in the territories.”

Finally, it argued, Akunis’ decision is liable to create “a chilling effect on freedom of expression.”

The committee of university heads welcomed the court’s decision to issue a show-cause order, saying it “sends a clear message to Minister Akunis and ministers in general that political considerations shouldn’t be mixed with professional decisions. It’s actually the minister’s conduct that introduces political considerations into Israel’s scientific activity, and thereby serves overseas movements like BDS,” it added, referring to the boycott, divestment and sanctions movement.

The next hearing on the petition will take place in another month.