How the Government’s Attorney Became Its General

By Evelyn Gordon

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

On September 8, 1993, a five-justice panel upheld Harish’s opinion that Rabin had to fire both Der’i and Pinhasi. The court’s deputy president Aharon Barak, who wrote the Pinhasi verdict, did not stop at merely siding with Harish in this particular case, however. Replying to the charge raised by Pinhasi’s lawyers that Beinish’s double duty had left Rabin inadequately represented, Barak replied that while Rabin personally may not have been represented, the government had been perfectly represented—because in any case where the attorney-general disagrees with the government or the prime minister, the attorney-general always prevails, and his opinion becomes the official position of the government:

It is true that the attorney-general’s position was different from that of the prime minister. They tried to convince each other, but did not succeed. In this situation, the attorney-general must represent the prime minister before us according to the attorney-general’s legal viewpoint. The reason behind this approach is inherent in the view that the attorney-general is the authorized interpreter of the law for the executive branch…This has become part of the accepted law in Israel.⁵⁷

The significance of this obiter dictum was largely lost on the public amid the political storm provoked by the verdict and, in particular, by the question of whether Shas would leave the coalition and imperil Rabin’s majority in the upcoming Knesset vote on the Oslo accords. But the legal commentators noticed.

“The High Court of Justice has clarified what should have been clear,” wrote Ze’ev Segal of Tel Aviv University Law School in the daily Yedi’ot Aharonot. “The attorney-general is the supreme interpreter of the law for the government, and his opinion obligates the government. If the attorney-general believes a governmental authority is acting illegally, he has the right to announce that he will not defend its actions. One may say that it is even his duty to do so.”⁵⁸ Moshe Reinfeld, legal commentator of Ha’aretz, observed that “the High Court has now made it clear that the attorney-
general’s opinion, and none other, is the prime minister’s opinion in the field of law.”⁵⁹ Ha’aretz also ran an editorial praising the court for giving “additional reinforcement to the institution of the attorney-general” by ruling that “his interpretation of the law obligates the government and the prime minister, and only he can represent the prime minister in court.”⁶⁰

In many ways, this verdict merely formalized the role attorney-generals had come to play ever since Shamgar’s insubordination in 1968. Yet the implications of Pinhasi are potentially enormous. For the first time in Israel’s history, an unelected official has been given the formal authority to act as the supreme arbiter of government policy. Thus, while the verdict did not create the problem of an overpowerful and politically unresponsive
attorney-general, it both expanded and entrenched it.

The Pinhasi verdict had the effect of eliminating two important factors that had hitherto checked the attorney-general’s powers. First, a government which sincerely believed that what it was doing was legal and proper could choose to ignore the attorney-general’s opinion and, if necessary, defend its policy in court. While most governments exercised this option only infrequently, this tactic was still in use as late as the mid-1980s. Thus the attorney-general’s power, while great, was far from absolute.

In the wake of Pinhasi, however, this is no longer the case. The government no longer has the legal right to contradict the attorney-general’s opinion, even in cases where the law is far from clear-cut. In the Der’i and Pinhasi cases, for instance, Prime Minister Rabin’s position was far from legally untenable: The only law on the books which offered criteria for when he was obligated to fire a minister or deputy minister was one that not only had yet to take effect, but which expressly established conviction as the criterion. Thus lawyers could and did disagree on whether Rabin or Harish was legally correct. Yet in the wake of Barak’s ruling, the government would no longer even have the right to test its competing theory in court; it would either bow to the attorney-general’s opinion, or face the court without legal representation.

The other potential check on the attorney-general’s power which Barak’s ruling effectively nullified is whatever sense of propriety or modesty might have accompanied an office as respected and exposed as that of the attorney- general. A scenario such as Yitzhak Zamir’s 1982 decision not to prosecute the Yamit settlers would probably no longer be possible, because it depended on Zamir’s willingness to subordinate his own legal position to other considerations enunciated by the government, such as the need for national reconciliation. Zamir never recanted his own legal opinion; he merely felt that in this case, the government’s views counted for more than his own. But once the attorney-general has become the government’s official judicial overseer, by what right could he defer to the government’s judgment?

In the years since the Pinhasi verdict, attorney-generals have already begun making use of their new authority to thwart the will of the electorate and its representatives on matters of policy. In 1994, for instance, the Labor government signed a coalition agreement with Shas, a religious party, which stated that “if the status quo in religious affairs is violated, the two sides promise to correct the violation by means of appropriate legislation.”⁶¹ This provision, drafted in response to a series of Supreme Court decisions which had struck down long-standing government policies and municipal bylaws affecting religious interests, was meant to ensure that any such rulings in the future would result in Knesset legislation to reinstate the overturned policy or bylaw.⁶² The agreement, however, was challenged in the High Court, and Harish’s successor, Attorney-General Michael Ben-Ya’ir (1993-1997), sided with the petitioners, reporting to the court that the clause in the coalition agreement was “inappropriate, and not to be acted on.”⁶³ The court responded by issuing a show-cause order against the agreement (a necessary precursor to ruling it illegal), based primarily on the fact that Ben-Ya’ir’s opinion was binding on the government, and his opinion that the agreement was inappropriate therefore made it presumptively illegal.⁶⁴ Prime Minister Rabin, foreseeing the seemingly inevitable final ruling, immediately began frantic renegotiations with Shas.

The court’s decision on this case was little short of astounding. Promises to enact certain policies into law are a standard component of all coalition agreements, and are a vital means for the expression of public will in a parliamentary democracy. The petitioners argued that this promise was different because of its blanket nature, and constituted an illegal abdication of the government’s duty to weigh all proposed legislation on its own merits. But since coalition agreements are not legally binding, it is hard to see how such an agreement could force the government to forward any legislation it did not consider justified. Indeed, the legal case was so dubious that Ben-Ya’ir himself refused to use the term “illegal” he merely deemed it “inappropriate.” In short, it was a policy ruling rather than a legal one. But that, in the post-Pinhasi era, was enough.⁶⁵

On an issue which was pivotal to the success of the coalition, and thus vital to the government’s historic policy initiatives, one would have expected the man known as the “Legal Advisor to the Government” to do his best to defend his client in court—particularly when the legal arguments against the agreement were less than compelling. Yet Ben-Ya’ir chose to block the government’s efforts, let the chips fall where they may.

In the end, Shas’ entry into the coalition was secured with a weaker version of the same agreement, accompanied by oral understandings that the new wording still meant the same thing. Yet the incident amply demonstrates the breathtaking scope of the attorney-general’s power: Without Shas firmly in the coalition, doubt would have been cast over the entire Oslo process. Ben-Ya’ir’s ill-founded opinion was enough to undermine the government’s crowning policy initiative—and, had Shas been less reliant upon Rabin’s unwritten word, might well have derailed it altogether.

Another example of the attorney-general’s immense power emerged immediately after the 1996 elections, when Prime Minister Benjamin Netanyahu was setting up his new government. Rafael Eitan, head of the Tzomet faction, was demanding the position of minister of internal security, an expanded police ministry created under the previous government. Ben-Ya’ir, however, opined that because of an impending indictment against him for violation of privacy in the context of an obscure rivalry within his own party, Eitan could not hold this or any other portfolio offering access to databases with sensitive personal information.⁶⁶

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