Israeli Justice Minister Using External Consultant to Dictate State's Positions on Settlements
Every document on the subject of settlements must pass through lawyer Amir Fisher, a right-wing activist who is not actually part of the State Prosecutor's Office
When Ayelet Shaked is asked what her greatest achievement has been as justice minister, she usually cites two things: In addition to the appointment of dozens of conservative judges, she says that, thanks to her, the State Prosecutor’s Office’s responses to petitions filed with the High Court of Justice regarding West Bank settlements are “different than they used to be.”
Shaked and her colleagues now take part in sessions relating to settlements, rewrite submissions and emphasize the positions presented to High Court justices. She doesn’t even try to hide her influence – she’s proud of it.
Is this a change in the world order with regard to how the Justice Ministry operates? Clearly. But Shaked doesn’t see this as a problem.
She didn’t wait long to effect change, say ministry sources. They say that several months after she assumed office in the spring of 2015, Shaked gave an order that every position submitted to the High Court regarding illegal outposts or settlements must be brought first to the attention of lawyer Amir Fisher.
Fisher is not actually part of the State Prosecutor’s Office. He is better known as a representative of the right-wing group Regavim. At the minister’s initiative, though, he has been given a new job, costing the taxpayer 350,000 shekels (about $100,000) a year. He is an external consultant to the ministry’s directorate on “settlement affairs.”
Now, every document on the subject must pass through him. He makes comments and orders changes before sending it back to the State Prosecutor’s Office, which submissively accepts his positions.
“This is something that goes to the root of our professional integrity,” said a senior lawyer in the ministry’s High Court department. “Maybe we’re becoming a department for Habayit Hayehudi, not one representing the State of Israel,” he said, referring to Shaked’s party.
This senior lawyer believes that State Prosecutor Shai Nitzan and Attorney General Avichai Mendelblit should clarify their views on the fact that the justice minister allegedly rewrites replies by state prosecutors on matters that interest her and that, if this is not legitimate, what they intend to do about it.
Lawyers in the State Prosecutor’s Office noted the close ties between Shaked, Mendelblit and Nitzan as a factor that grants her such access and powers of intervention. They say the two heads of the legal system should have set boundaries for the minister, but failed to do so. Now the lawyers speak in terms of helplessness, of people at the top allowing changes to be made to their professional briefs, of a wall that one stood between the ministry and state prosecutors being removed.
“We’ve never seen such behavior by the Justice Ministry,” said one person involved in High Court cases. “Shaked asked to be involved, since these matters deal with her electoral base,” said a former senior official at the ministry. “The question that needs to be asked is why the ministry employs an external consultant – someone from the political world who is not committed to civil-service norms or to keeping politics off-limits. It reflects a lack of trust in the system, as if she’s saying she doesn’t trust our opinions.”
One lawyer in the State Prosecutor’s Office told Haaretz they’ve had to insert changes Shaked wanted into their written positions. But any criticism of her is barely heard within the ministry walls, reflecting her power versus theirs. “They know Shaked is in charge of their promotions or their future careers as judges,” said a former lawyer in the department, adding that written positions are more carefully formulated now because they are seen by the minister. All that’s left is for the lawyers to play along with the new procedures imposed upon them.
One incident that took place some two weeks ago exemplifies the current situation. A lawyer refused to hand Fisher some documents. This created turmoil at the office, which allegedly ended in a meeting featuring the attorney general. However, the new procedures remained unchanged.
People both within the ministry and outside of it express concern with Shaked’s interventions and the merging of political considerations with professional ones.
“When the justice minister influences the content of responses to the High Court, this raises problems – especially in areas where it has no authority,” said a ministry official. “It’s as if Health Minister Yaakov Litzman asked to see legal opinions presented to the High Court that deal with transportation on Shabbat.”
Until Shaked arrived at the ministry, there was a clear procedure for dealing with petitions relating to illegal outposts – usually filed by Palestinians or settlers against the Defense Ministry and the military commander in the area, who are represented by state prosecutors. The High Court department in the State Prosecutor’s Office would formulate a response, which would go to the Defense Ministry and the local military commander, and also to the legal counsel for the West Bank. No stage of the process required the intervention of the minister, who was never a respondent and had no official role or authority in the matter.
But this changed when Shaked took over, as confirmed by the ministry’s chief of staff, Yair Hirsh. In an interview with the right-wing newspaper Makor Rishon last February, he stated that the Justice Ministry is now a participant in writing rebuttals to petitions, in contrast to the previous situation in which only the Defense Ministry was involved. “We’ve taken a veteran consultant on settlement affairs, lawyer Amir Fisher, and he personally deals with all the petitions,” Hirsh said. “We receive all the drafts and meet with Defense Ministry officials and legal advisers, recognize the problems and discuss them,” he added.
As an example of intervention, Hirsh cited the state’s response to a petition by Palestinians to remove the settlement of West Tapuah, which was built without permits on private land, state land and land whose status hasn’t been determined. “Through hard work we changed the state prosecution’s approach and saved West Tapuah,” Hirsh told Makor Rishon. “When the High Court handed down its ruling earlier that month [February 2017], the court adopted the state’s position and gave it 18 months to demolish the structures that were built on private land, and allowed it time to legalize the construction on state land and clarify the status of the other land.”
Hirsh noted that one ruling can have wide implications for many others. “One High Court ruling can help 40 settlements. And this is our mission,” he said.
In December 2016, Shaked had called earlier petition responses by state prosecutors “stupid,” in light of the High Court’s decision not to postpone the evacuation of the illegal outpost of Amona. “The state had previously agreed to evacuate the settlement, based on earlier High Court rulings. We no longer give such responses,” Shaked told Army Radio. “We find solutions in each individual case.”
The change is also being felt outside of the Justice Ministry. Lawyers representing left-wing organizations and Palestinians in petitions against illegal outposts report a growing trend for the State Prosecutor’s Office to look for reasons to dismiss petitions out of hand, such as late submissions or procedural errors. “In the past, the State Prosecutor’s Office dealt with the matter at hand, not with procedural issues,” said lawyer Shlomi Zecharia. “Now they evade dealing with substantive issues regarding the rule of law and dismiss petitions for technical reasons.”
Attorney Michael Sfard, who regularly represents Palestinians and left-wing organizations, added that Shaked’s term of office ushered in “an enormous decrease” in the High Court department’s independence on cases relating to settlements and outposts. In these cases, the department “has distanced itself from its historic ethos as a department responsible for the public interest and become very similar to a private law firm, which is supposed to make any argument, however ridiculous, that has a chance of obtaining its client’s desire,” he said.
Fisher has signed a conflict-of-interests agreement barring him from dealing, in his capacity as a ministry consultant, with cases he previously handled or is currently handling as a private attorney. But the agreement doesn’t prevent him from dealing with other cases whose results could affect his private-sector cases.
In the Makor Rishon interview, Hirsh said that Shaked personally hired Fisher, whom ministry employees term the minister’s trusted confidant.
In a joint response to Haaretz’s questions, Shaked, Mendelblit, Nitzan, Fisher and the ministry’s senior management said that Fisher was hired because the ministry needed “expert professional advice” on various issues related to the settlements to help the ministry formulate its policy. “This is a complex, complicated field that affects the activities of several government ministries and requires time and expertise,” the statement added.
It said the conflict-of-interest agreement “prevents any suspicion of conflicts of interest,” and that all High Court cases, “including those related to settlements,” are handled in cooperation with “either the relevant political officials or the relevant professional ones, whose positions the prosecution represents in these proceedings.”
Nitzan and Mendelblit refused to answer Haaretz’s question as to whether they considered it legitimate for a political figure to intervene in the state’s responses to the High Court. They also declined to comment on the criticism from within the ministry.
Shaked refused to answer the question of whether she trusted the High Court department’s attorneys; if not, why not; and if so, why Fisher was needed.