How the Government’s Attorney Became Its General

By Evelyn Gordon

And now, for the Israeli judiciary's latest trick: Expropriating the attorney-general

Zamir then said he favored a Knesset proposal to restrict the freedom of movement normally granted all MKs in Kahane’s case, as long as the decision was “formulated so as to be restricted to the special circumstances surrounding this particular man and this particular issue, without creating a precedent....” He concluded: “In my opinion, the Knesset ought to express its clear objection to Kahane’s actions, and actively limit these actions.”⁴³

Certainly, Zamir was not the only person in Israel to find the views of Meir Kahane “loathsome.” Yet for an attorney-general to wield the full power of his office in battle against a duly elected party in the Knesset is a political act par excellence, and hardly accords with an “apolitical” office.

Although he made ample use of the power he had inherited, Zamir was not the empire-builder that Shamgar and Barak were. The role of the attorney-general did not grow significantly under his tenure, and in some respects, due perhaps to Zamir’s personal modesty, it actually contracted slightly. In 1979, for instance, the High Court ruled that the government had to evacuate the settlement of Elon Moreh, and issued a deadline by which the evacuation would have to be completed. The government decided on its own authority to extend the deadline by five weeks, and Zamir warned that he would not be able to defend this decision in court.⁴⁴ Yet when the court was petitioned against the delay, Zamir declined to take a leaf from Shamgar’s book, and decided to represent the government in court.⁴⁵

An even more telling incident occurred after the town of Yamit was evacuated in the Sinai withdrawal of 1982. Zamir wanted to prosecute settlers who had mounted a campaign of resistance to the evacuation, saying the organized resistance constituted “a real danger to the internal structure of society.” However, Prime Minister Begin, backed by his government, argued that prosecutions would deepen the already deep rift in the country which the evacuation had created, and he preferred to try to heal the wounds. As Begin himself acknowledged, Zamir was under no obligation to defer to the government’s opinion. Nevertheless, Zamir did so, saying that if the government believed “that in this special instance it is justified to forgive and seek reconciliation, to extend a hand of peace, I will accept the government’s policy, though this is extremely difficult for me.”⁴⁶

Perhaps because of this attitude on Zamir’s part, and perhaps also because Zamir never enjoyed the same rapport with Begin that Barak had, the government did not automatically bow to every opinion Zamir issued. For the first time since the 1960s—when the Agranat Commission had granted the government final say in policy decisions—the government actually began on occasion overruling the attorney-general. In 1980, for instance, the government approved construction of a new road to Elon Moreh despite Zamir’s opposition.⁴⁷

However, this slight retreat under Zamir made hardly a dent in the overall pattern of the attorney-general’s growing authority. Indeed, by the time Zamir resigned in 1986, this power was so evident that it had begun to evoke criticism in some legal and political circles. Hebrew University professor Claude Klein—a former dean of the university’s law school and an expert in constitutional law—charged that the attorney-general’s power had grown beyond “logical proportions.”⁴⁸ Deputy Prime Minister Yitzhak Shamir and other Likud MKs called for placing limits on the attorney-general’s authority.⁴⁹ Yet there was also strong legal and political support for maintaining the attorney-general’s power. David Kretzmer, for instance—also an expert in constitutional law at Hebrew University—claimed the Israeli attorney-generalship was the object of worldwide envy, because “in a country that is largely politicized, the institution of the attorney-general—with its tradition of impartiality—is a source of strength.”⁵⁰ Law professor and Labor MK David Liba’i charged that any effort to weaken the attorney-generalship “would undermine the rule of law.”⁵¹ Thus when Yosef Harish assumed the post in June 1986, he enjoyed powers that far exceeded those of any other attorney-general in the Western world.⁵²

Unlike most of his predecessors, Yosef Harish (1986-1993) was widely considered an ineffectual attorney-general. As one journalistic retrospective of his career put it, Harish

has absorbed harsher criticism during the years of his tenure than any of the attorney-generals who preceded him. He has been called spineless; people have said that he is hesitant and incapable of making decisions…The media have criticized him harshly. They said he has caused a decline in the status of the attorney-general, and that the post has lost some of the prestige it enjoyed during the tenures of Meir Shamgar, Aharon Barak and Yitzhak Zamir.⁵³

Three months before his retirement in November 1993, however, his invertebracy suddenly vanished. As that same retrospective put it, Harish “was suddenly revealed as a different man. In the Der’i and Pinhasi affairs, Harish stood on his hind legs, reared himself up and became aggressive and unyielding in his decisionmaking.”⁵⁴

The “Der’i and Pinhasi affairs” began in June 1993, when, after a police investigation which had lasted for years, Harish announced his intention to indict Interior Minister Aryeh Der’i on charges of bribetaking, fraud, breach of trust and falsifying corporate documents. The Movement for Quality Government in Israel, a watchdog group that had been trying to get Der’i ousted for years because of the investigation against him and had petitioned the High Court against Der’i’s continued tenure shortly before the planned indictment was unveiled, now reworded the petition to place the draft indictment at the center of its arguments.

Prime Minister Yitzhak Rabin’s view was that the indictment changed nothing. While the law gave him the power to fire Der’i, he said, it did not specify when this power must be used, and he therefore preferred to wait until the indictment was actually filed in court—a day Rabin hoped might not come, since the filing of an indictment would depend on the Knesset’s acting to lift Der’i’s parliamentary immunity. Rabin argued that even that date went beyond the call of duty, since most elected officials are required to resign only when actually convicted. No extant law said anything about when a minister must resign, Rabin added, and a recently passed law due to take effect after the next elections stipulated that ministers must resign only upon conviction of a crime—so that as far as Rabin was concerned, his decision was consistent with the law, both in letter and in spirit.⁵⁵

Harish, however—whether motivated by genuine repugnance or by anger over Rabin’s rumored plans to replace him in November—refused to back the prime minister. Instead, he told the court that he now agreed with the petitioners: “The appropriate norm, according to fundamental principles of justice and government, is that Der’i should not continue to occupy his office,” he wrote in a statement to the court.⁵⁶

In August, while the Der’i case was still pending before the High Court, another group, Amitai-Citizens for Good Government, filed a petition demanding the ouster of Deputy Religious Affairs Minister Rafael Pinhasi, also of Shas, against whom Harish had also recently prepared a draft indictment for violations of tax and party-funding laws during Shas’ 1988 election campaign. Again, Harish took the petitioners’ side, while Rabin adamantly opposed firing Pinhasi. Harish refused to appear in court for the hearings on either petition, leaving State Attorney Dorit Beinish in the unenviable position of representing both the attorney-general and the prime minister in court, despite their diametrically opposed positions.

To understand fully the predicament Rabin found himself in, one need only recall that in mid-August, his government revealed its secret negotiations with the PLO which would lead to the signing of the Oslo accords on September 13. The government enjoyed only a razor-thin parliamentary edge on by far its most significant policy initiative, and a dismissal of Der’i and Pinhasi would seriously undermine Shas’ commitment to the governing coalition and thus undermine the upcoming Knesset vote on Oslo. Small wonder, then, that Rabin clung tenaciously to his own interpretation of the prevailing law.

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