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Israel: Supreme Court Rules Interim Government May Not Appoint Public Officials in the Absence of Essential Urgent Needs

(Aug. 23, 2019) On August 19, 2019, Israel’s Supreme Court ordered the appointment of Ophir Cohen as director general of the Ministry of Justice to be put on hold until the minister of justice explains why his removal of Amy Palmor, the former director general of the Ministry who had served in that role for the past five years, should not be voided, and why Cohen’s appointment during a transitional government and an election period should not be held unlawful. (HC 5063/19 Movement for Quality of Government in Israel v. Minister of Justice (Aug. 21, 2019) (in Hebrew).)

The termination of Palmor and the selection of Cohen were made by the newly appointed minister of justice, Amir Ohana, who took office on June 5, 2019, following the passage of the Twenty-First Knesset Dispersion Law, 5779-2019 on May 29, 2010. This Law provides for the dissolution of the 21st Knesset (Israeli parliament), which was elected on April 9, 2019, and sworn in on April 30. Under Israeli law, legislation requiring dissolution of the Knesset removes the authority of the president to assign the formation of a government to another member of the Knesset following repeated unsuccessful attempts by the prime minister to form a coalition government. The Dispersion Law sets September 17, 2019, as the date of the election for the 22nd Knesset.

According to a media report, in a hearing at the Supreme Court before rendering their decision of August 21, “ [t]he justices reprimanded the state representative … claiming that the state avoids discussing whether such an appointment during a transitional government is appropriate.” Justice Manny Mazoz has reportedly commented that Cohen’s appointment on its face contradicted the attorney general’s directive, which provides that replacing a ministerial office’s director general during an election period should be avoided except if proven vital for the proper functioning of the ministry. According to Mazoz, the appointment in this case appeared to have violated a prior Supreme Court decision that a transitional government is prohibited from making decisions on appointments for positions in the public sector unless it is necessary and urgent.

In accordance with the Supreme Court decision in HC 8815/05 Landshtein v. Shpigler (Dec. 26, 2005), the principle of continuity is a fundamental principle in the exchange of power in a democratic regime. Its purpose is to protect the stability of the regime and prevent a governmental vacuum. The subordination of a transitional government to the principles of general public law, however, requires it to act “reasonably and proportionally” during the transitional period because its authority is not derived from the trust of the public or the Knesset. During this period, the Court in HC 8815/05 held that the government must use restraint in exercising its powers over all matters when there is no necessity and special urgency to act during the transition period (para. 9).

Under the decision in HC 5063/19 of August 21, 2019, the minister of justice and other government officials listed as respondents must file affidavits with the Court within two weeks to explain why the replacement of the Ministry of Justice director general was valid if they wish to reverse the injunction ordering the replacement not to proceed.