How the Government’s Attorney Became Its General

By Evelyn Gordon

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

Again, the legal basis for Ben-Ya’ir’s ruling was questionable. As many legal experts pointed out, Eitan sat in the government’s special “security cabinet” and had access to every classified document that crossed the government’s desk.⁶⁷ Barring him from a particular ministry would do little to restrict his access to sensitive information. Had it not been for the Pinhasi verdict, which gave the attorney-general the final say, the government could simply have ignored the recommendation, or Eitan could have challenged it in court. The new legal paradigm, however, choked off any means of appealing or circumventing the attorney-general’s opinion, and Eitan had to make do with the Agriculture Ministry.

Months later, when it was too late to reverse the damage, Eitan was fully acquitted. His vindication did more than just prove his innocence: It also demonstrated just how much power had accumulated in the attorney-general’s unelected, unaccountable hands. With the alacrity of a seasoned despot, Ben-Ya’ir managed to take his own, wholly unlegislated notions of political propriety, translate them into a legal presumption of guilt without trial, and impose them on the composition of government without having to convince anyone he was right—handing a major setback to the innocent Eitan and the tens of thousands of voters who had found voice in his party.

The Pinhasi verdict marked a watershed in the decades-long power struggle between the elected government and the unelected attorney-general: With this ruling, the balance shifted decisively in the attorney-general’s favor. As if spurred on by the Pinhasi success, the attorney-general has scored in recent years a series of further victories in a relentless campaign to deprive the government of every last check on his powers.

The most important of these checks is the ability to dismiss an attorney-general whom the government considers recalcitrant. Precisely because the status of the attorney-general has never been codified in law, he enjoys no legal protections: He serves for an indefinite term, and can be dismissed at any moment by government decision. In practice, however, dismissing the attorney-general for failing to serve the government’s needs is next to impossible, due to the powerful myth of the judicial attorney-general who is ׂabove politics.׃ And in light of a recent High Court ruling, firing the attorney-general might well be illegal.

The crucial precedent in this area was set in 1996, during a battle over the occupancy of another presumably “apolitical” office. Like the attorney-general, the civil service commissioner, a sort of director of personnel for state employees, is a senior and very powerful civil servant who, according to prevailing sentiment, is supposed to be independent and removed from politics. Yet he also oversees the implementation of government policies on
administration and manpower, and since Prime Minister Netanyahu was planning a major reorganization of government ministries, he sought a commissioner who agreed with his ideas and would strive to implement them. He therefore dismissed incumbent Yitzhak Gal-Nur—replacing him with Shmuel Hollander, another long-time senior civil servant who had, among other posts, served as Yitzhak Rabin’s cabinet secretary.

The Movement for Quality Government petitioned the High Court of Justice against Gal-Nur’s dismissal (Gal-Nur himself later joined the petition), arguing that one of the civil service commissioner’s main jobs is to prevent political appointments, and that he must therefore be independent and apolitical, and should not be replaced when the government changes. At the initial hearing, the justices made it clear that their sympathies were with the petitioners, and Netanyahu read the writing on the wall. He rescinded the dismissal without waiting for a ruling, telling the court in a written statement that he “expressed his full support for the independent legal status of the civil service commissioner and the status of the Civil Service Commission, and for the importance of preserving this institution as an independent body not influenced by political changes.”⁶⁸

Yet the court was not yet sated: It then acceded to the petitioners’ extraordinary request that it rule on the petition anyway, even though the dispute had been settled. A month later, the court issued its formal ruling: “The fact that the government has changed does not justify replacements in the civil service, except in the case of those few positions which can be termed ‘positions of trust.’”⁶⁹ “Positions of trust” are those appointees who, by the nature of the position, must be able to work very closely with the responsible minister and earn his personal trust. The civil service commissioner, according to the court, is not such a position. His effectiveness has nothing to do with his political inclinations, and thus a change of government cannot be grounds for his replacement.

The implications for the attorney-generalship are clear. The attorney-general is also widely perceived as being an independent, non-political official—one who Aharon Barak, the current Supreme Court President, felt even in 1977 should not be replaced just because the government changes.⁷⁰ Surely if an incoming government does not have the discretion to replace the civil service commissioner, it cannot replace its attorney-general either. Yet if a government cannot replace an attorney-general at its discretion upon entering office, when can it? The logical conclusion, unspoken yet hovering like a dark cloud over the entire affair, is that it cannot replace the attorney-general at all.

Even in the unlikely event, however, that the court might refrain from forbidding some future government to dismiss its attorney-general, the public myth of the “independent, apolitical” figure would prove a powerful barrier. The outcry which accompanied a rumored plan by Netanyahu to dismiss Michael Ben-Ya’ir made this amply clear. In the end, Netanyahu chose to keep Ben-Ya’ir on, for fear of the public’s reaction.⁷¹ In short, the government’s theoretical right to fire the attorney-general at will has been undermined if not cancelled, and still another check on the attorney-general’s powers has gone by the wayside.

Furthermore, even the government’s right to choose the attorney-general—which enables it at least to appoint someone sympathetic to its policies when the position becomes vacant—has now come under attack, thanks to the Bar-On scandal in early 1997. Subsequent to Ben-Ya’ir’s resignation in December 1996, his successor, attorney Roni Bar-On, was forced to quit less than a day after his appointment took effect, due to overwhelming
criticism of the appointment on professional and political grounds by the journalistic, legal and political communities —including many members of Netanyahu’s own governing coalition. Ten days after his resignation, a reporter’s allegations that Bar-On had been appointed primarily in order to facilitate a plea bargain for Aryeh Der’i prompted a criminal investigation into the affair. Among others, both Prime Minister Netanyahu and Justice Minister Tzahi Hanegbi were implicated in the scandal. The man who replaced Bar-On, Attorney-General Elyakim Rubinstein, eventually decided that while there was not enough evidence to indict either Netanyahu or Hanegbi, there were indeed grounds for a further indictment of Der’i, a decision which was upheld by the High Court of Justice.

In the aftermath, several of the shaken coalition partners presented Netanyahu with an ultimatum: Either the process of appointing the attorney-general, and other key senior posts, must be reformed, or they would quit the coalition and bring down the government. In June 1997, the government responded by establishing a committee to vet candidates for the attorney-generalship, to be composed of a retired judge, the civil service commissioner and an unspecified public figure.⁷² This committee would have the right to reject any candidate which it considered “improper,” defined among other things as having personal or political ties to someone in the government.⁷³ Thus the government, scalded by a series of humiliations, has sharply limited its own ability to find someone sympathetic to its own program, who would help to push its agenda forward. Any such person would likely have personal or political ties to some member of the government and, depending on how aggressively the new committee pursues its mandate, would therefore be disqualified in advance.

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