Attorney-General Gali Baharav-Miara told Government Secretary Yossi Fuchs on Friday that ministers must exercise restraint and consult the relevant ministry’s legal adviser before making non-routine decisions, after the Knesset dissolved ahead of the October 27 election.
The letter followed the Knesset’s overnight approval of an amendment to the Party Financing Law that included the dissolution of the 25th Knesset and provided for an election recess beginning Saturday. Sixty-two MKs supported the measure, with none opposed.
“There is no doubt that we are within an ‘election period,’” Baharav-Miara wrote, adding that the government had consequently become an outgoing government.
Although it will continue to serve until a new government is formed, its scope of action and the manner in which it exercises its powers are now different from those of an ordinary government, she said.
The letter does not impose a blanket freeze on government activity. Instead, Baharav-Miara reiterated the courts’ longstanding requirement that an outgoing government balances its duty to continue governing against the restraint required before an election.
'The more urgent a government action, the less restraint required'
The more urgent and essential a proposed government action is, she said, the less restraint will be required. Decisions that are not urgent or necessary will face greater restrictions.
The precise limits cannot be set in advance and must be determined on a case-by-case basis, according to the nature of the power being exercised and the circumstances surrounding the proposed decision, she said.
The attorney-general cited concerns identified in High Court rulings that a government operating during an election period may prioritize “narrow party interests” over the public interest or create facts on the ground that could leave the next government facing an irreversible situation.
Accordingly, ministers and other authorized officials must conduct a preliminary examination with the legal adviser of the relevant ministry before making decisions that fall outside routine government administration.
Baharav-Miara said that detailed instructions would be distributed to government ministries in the coming days covering cabinet decisions, secondary legislation, appointments, government support, international agreements, and other fields.
She also asked Fuchs to ensure that legal opinions accompanying proposals placed on the agendas of cabinet and ministerial committee meetings expressly address the restrictions applying during the election period.
The potentially most consequential part of the letter concerns decisions already made in recent weeks.
Baharav-Miara noted that election-period restrictions can apply even before the formal dissolution of the Knesset or the official declaration of an election when it is already clear that an election is approaching.
She said that the recent political debate over bringing the election forward, together with the passage of a bill to dissolve the Knesset in its first reading, must therefore be taken into account when legally reviewing decisions and actions taken recently, as well as when those decisions are implemented.
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The letter does not state that such decisions are automatically invalid or announce that they will be reopened. It does, however, indicate that their legality and implementation may have to be examined in light of the stricter standards applying during an election period.
The warning came three days after Deputy Attorney-General Gil Limon raised concerns over what he described as a “flood of draft resolutions” submitted ahead of the Knesset’s election recess.
In a letter also sent to Fuchs, Limon said the proposals included decisions carrying extensive budgetary implications and sought to transfer hundreds of millions of shekels for various purposes, according to Globes. The total amount brought for approval could have exceeded NIS 1 billion.
Limon said many of the proposals had been submitted without sufficient professional groundwork, a clearly established need, or the required legal review.
He warned that bringing the measures forward at the last minute could amount to an attempt to circumvent the restraint rules applying during the election period and prevent the necessary professional and legal work from being completed.
The government approved some of the proposals that morning, without Prime Minister Benjamin Netanyahu present and with relatively few ministers attending, and scheduled another meeting for later in the day, Globes reported.
The legal principles set out in Friday’s letter are not new. Baharav-Miara issued similar guidance when Israel entered an election period in June 2022.
The guidance issued at the time also distinguished between an “outgoing government” before election day and a “transition government” from the election until a new government is formed.
National Security Minister Itamar Ben-Gvir rejected Friday’s letter, writing, “I did not count you then, and I do not count you today.”
Ben-Gvir said that removing Baharav-Miara would be his “first condition” in the next term and told her to “start packing.”
“The great change is on the way,” he added.
The government previously voted to dismiss Baharav-Miara, but a seven-justice High Court panel unanimously annulled the government resolutions underlying her dismissal in December and ruled that she remained lawfully in office.