Israel has not had a state comptroller for three months, and the Knesset is obligated to hold a repeat vote for the position as soon as possible, Knesset legal adviser Sagit Afik told the High Court of Justice on Monday.
The July judgment invalidating the election of attorney Michael Rabello must be implemented, preferably before the current Knesset’s term ends following the October 27 general election, she said.
The authority to convene the Knesset or set a date for the vote rests with Knesset Speaker Amir Ohana, who is expected to submit a separate response through private counsel.
Afik has repeatedly told Ohana the plenum should be convened, but he has so far declined to set a date. Once his response is filed, the court will decide how to proceed with the petition and whether further intervention is required.
The petition, filed by Yaron Gadot, asks the court to compel Ohana to convene the plenum and complete the election process.
Afik said four developments since the July 2 judgment could affect the timing and conduct of the vote, but none cancels the Knesset’s obligation to comply with the ruling.
Changes in Knesset create obstacles for holding new vote
The composition of the Knesset has changed: Factions have split, MKs have switched parties, five MKs have resigned, and five others who did not participate in the original vote have replaced them.
Holding a secret vote during a general-election campaign could increase the weight MKs give to party and factional considerations, Afik said. The secrecy requirement is intended to allow MKs to vote according to their judgment and conscience, free from coalition or party pressure, she added.
The Knesset is in an election recess, when MKs are focused largely on campaigning and previously scheduled events. Therefore, sufficient notice would be needed to allow all MKs who want to participate to attend, Afik said.
Under the State Comptroller Law, the speaker must convene the Knesset to elect a comptroller even during a recess, Afik said.
Because the court had ordered the second round of voting to be held again, Ohana would not be required to repeat the formal consultation with his nine deputies or provide the three weeks’ written notice ordinarily required before an initial comptroller election, she said.
Reasonable advance notice would nevertheless be necessary, Afik said, adding that none of the Knesset factions or deputy speakers had asked Ohana to convene the plenum for a repeat vote.
Position left vacant after previous comptroller completed term with no successor
The vacancy began in early July, when Matanyahu Englman completed his seven-year term without a successor in line to take office. Rabello’s election had been invalidated two days earlier, leaving the State Comptroller’s Office without either a permanent comptroller or a temporary replacement.
The office’s professional staff can continue routine work, but several core powers are vested personally in the comptroller and cannot be delegated, its legal adviser said in July. These include signing and publishing reports, opening new audits, imposing sanctions under party-financing laws, and granting protective orders to public employees who report suspected corruption.
The last of those functions is exercised by the comptroller in his parallel role as ombudsman. Without a serving comptroller, the State Comptroller’s Office has said it cannot legally grant relief to workers who claim they were targeted after exposing wrongdoing.
The office initially asked the Knesset to appoint an acting comptroller during the vacancy. Afik rejected that proposal on grounds that the relevant provisions apply when a serving comptroller is temporarily unable to perform the job, not when a term has expired and no successor has entered office.
The legally proper solution was to complete the election rather than create an interim appointment through a provision that did not cover the situation, she said.
Rabello was chosen over retired Supreme Court justice Yosef Elron on June 3 after two rounds of voting. Elron led the first round 60-57, leaving both short of the 61 votes required.
The vote was then restarted after allegations emerged that coalition MKs had photographed or filmed their ballots behind the voting screen.
Rabello won the second round 61-57.
On July 2, a five-justice High Court panel unanimously invalidated the second ballot. The documentation of votes had caused a material breach of the legally required secret ballot, it ruled. The court ordered the Knesset to hold that round again and said it was presumed that it would complete the process as soon as possible.
Afik had previously defended the original result and said there was insufficient evidence that MKs had been instructed to document their votes. Since the court issued its final judgment, however, she has consistently maintained that it must be implemented.
If the repeat vote is held by the outgoing Knesset, it would complete the second-round contest between Rabello and Elron.
If the process is postponed until the next Knesset, a further legal question will arise over whether lawmakers can simply repeat the second round or must begin the election process again, Afik said.