Once upon a time there was a finance minister named Yuval Steinitz, who sought a new head for the Israel Tax Authority. A search committee was formed, in accordance with protocol, comprising top tax experts and professionals. They recommended a prominent tax assessor by the name of Moshe Asher.
But Steinitz didn’t want Asher, so he ordered changes to the job criteria and the creation of a new search committee. Asher petitioned the High Court of Justice, which ruled that while the minister is in no way meant to be a rubber stamp, the search committee’s recommendation carries, “great, almost decisive weight,” in the hiring process. If the minister chooses to ignore it he must provide substantial reasons, the court said.
That is the balance between professional and public-political considerations in normal times. In an election season, when a caretaker government is in power — or one that sees only the next election — the balance changes.
Except in critical instances, such a government is not permitted to make senior appointments in the public service. That’s why an acting state prosecutor will be named within a few days to replace State Prosecutor Shai Nitzan, whose term ends December 15, rather than a permanent replacement.
The rationale is that there’s no reason to believe that during this period politicians will put the state’s interests above political considerations. There’s also a need to prevent an outgoing government from hamstringing the next government — the one that will have the trust of the Knesset and the public — by making permanent appointments during this in-between period.
Justice Minister Amir Ohana, during the hiring process for the acting state prosecutor, seeks great control over the choice of candidate. During normal times, when the government is acting with the trust of the Knesset, the minister is merely another link in the chain of this process. Unlike the attorney general, whose work involves communicating with the political leadership, the state prosecutor doesn’t deal with political issues; the principle of independent legal considerations is meant to erect a protective wall between him and the politicians. That’s why the attorney general heads the search committee for state prosecutor. The committee recommends a candidate to the minister, who is expected to accept the recommendation — in accordance with the rules set in the Moshe Asher case — and submit it to the cabinet, which has the formal authority to approve the appointment.
What is Ohana trying to do? Precisely because we have a caretaker government that does not have the Knesset’s trust, and precisely because the state prosecutor’s appointment is a temporary one and there has been no search committee, Ohana seeks to decide on this appointment on his own.
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This is completely backwards: In a situation where the weight of the cabinet minister in the process ought to be even less than usual due to the transitional, caretaker government, Ohana actually wants to increase his influence.
This argument is correct in principle, without even mentioning the fact that Ohana is the personal appointment of a prime minister who stands accused of crimes, and the fact that Ohana has been in effect Prime Minister Benjamin Netanyahu’s long arm in the legal system. These are all personal circumstances that disqualify Ohana specifically, as opposed to any other possible justice minister, from dealing with any senior law enforcement appointment.
So at best, the logic guiding Ohana in his insistence on deciding who will be acting state prosecutor is distorted. And at worst, he is committing a wrong at Netanyahu’s behest. A justice minister was almost prosecuted once when he tried to mix a senior legal appointment with a criminal investigation — in the Bar-On-Hebron affair. Netanyahu was prime minister back then, too.