How the Government’s Attorney Became Its General

By Evelyn Gordon

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

Some members of the government have attempted to push this development even further. Justice Minister Hanegbi, for instance, recently proposed the establishment of a five-man committee to nominate candidates for the attorney-generalship, consisting of the justice minister, a retired Supreme Court justice, a former attorney-general or state attorney, a representative of the Bar Association and a law professor. Under Hanegbi’s plan, this committee would accept proposals from interested candidates, weigh them and recommend the candidates it considered most appropriate for the job; the government would then be forced to choose from the short list approved by the committee.⁷⁴ Knesset Law Committee Chairman and coalition member Sha’ul Yahalom (now Minister of Transportation) submitted a bill which would institute an even more stringent procedure: Under Yahalom’s proposal, the attorney-general would be chosen by an eleven-member committee of which five members would be non-politicians and a sixth a representative of the opposition—leaving the government with a minority representation—and could only be fired with the approval of nine of the committee’s members.⁷⁵

Even if these proposals, or others like them, never see the light of legal day, the reality is grim enough. The government is now saddled with a senior official who has the legal authority to veto virtually any government action or policy, against whom it has no means of appeal, and of whom it can rid itself only with utmost difficulty if at all; and with an outside committee which has the power to veto any candidate who would be too likely to use his power in line with the government’s wishes. Put bluntly: The elected government has ceased, at least in theory, to be the country’s
ultimate executive authority.

What exactly is wrong with having a powerful, quasi-judicial attorney-general acting as government watchdog? Foremost is the challenge to representative government it entails. In Israel, a significant part of the people’s ability to determine their own affairs—from the final say in who will hold the country’s highest offices to the right to veto the elected government’s policy initiatives—has been transferred from the people’s elected representatives to an official who is not only unelected, but who undergoes no popular approval process (unlike, for instance, the United States, whose much less powerful attorney-general must nevertheless meet Senate approval). Once chosen, he bears no accountability to the public, and is almost impossible to dismiss.

A further problem arises in the context of his “judicial” capacity. One of the most basic rights enjoyed by every citizen is the right to test his competing understanding of the law in court. Yet the elected government in Israel lacks that luxury: No amount of ambiguity in the law is enough to allow the government to choose the interpretation most in accord with its needs and try to defend it. Instead, the “Legal Advisor to the Government” has become its preemptive judge, before whom it merits no sympathetic legal counsel, and against whom it has no appeal.⁷⁶

One might argue, then, that the attorney-general should simply restrict his rulings to unambiguous legal situations. The reality, however, is that such situations rarely exist: Lawyers, judges and legal scholars can and do disagree on many questions that would appear cut-and-dry. The main purpose of the court system, with its endless array of suits, countersuits, appeals and rehearings, is to try to resolve these disagreements. But where government actions are concerned, the entire system collapses into the hands of a single man, while the cost of error is potentially far greater: A wrongful judgment risks not only denying justice to a single party, but stymieing the will of an entire nation as expressed through the acts of its elected governors—and democracy itself is brought into question.

The attorney-general’s power to dictate to the government would therefore be unconscionable even if he confined himself to legal questions alone. But the anti-democratic nature of the system becomes even clearer when one considers the type of issues on which the attorney-general frequently rules. Questions such as the validity of the Labor-Shas coalition agreement or the propriety of appointing a man under indictment to a ministry are primarily moral and political issues rather than legal ones. This is precisely the type of judgment which the government is elected to make, and which it is the electorate’s job to oversee. If the majority of voters felt that Labor’s concessions to Shas on religious issues were unthinkable, or that Der’i should not be permitted to retain his ministry, they had all the forms of democratic expression at their disposal, from poster campaigns to the ballot box. Replacing the normal methods of democratic oversight with the oversight of a single, all-powerful unelected official is not entirely different from replacing democracy with autocracy.

The possible abuses of the attorney-general’s newfound power are virtually unlimited. Michael Ben-Ya’ir’s imposition of his own will on the government, though often substantial, was limited compared to what it might have been. When one considers the range of policies to which earlier attorney-generals have voiced strong objection—from Barak’s opposition to an amnesty for tax evaders to Zamir’s opposition to elements of Begin’s settlement plan—and the degree to which they have succeeded in imposing their views even without the legal authority granted them by the Pinhasi verdict, it is clear that the unelected attorney-general could easily become a central figure in the shaping of government policy.

While the atrophy of democratic controls is the most obvious harm done by the attorney-general’s excessive role, it is not the only one. Almost equally destructive is its effect on the criminal justice system.

The idea behind an independent, empowered attorney-general was, first and foremost, that it would help keep the justice system clear of politics. Obviously, this is a noble goal: A politicized law enforcement system would severely undermine the public trust in its institutions. But the result was the exact opposite of what was intended: The attorney-general’s growing involvement in the daily workings of government, and the expansion of his operations beyond the strictly legal into the moral and political arenas, have inexorably brought about the politicization of his office and a commensurate distrust in the entire legal system.

Yosef Harish’s decision to indict Aryeh Der’i provides a salient example of this problem. The Shas party has succeeded in convincing its voters that the long line of indictments against the party leadership (Der’i was neither the first nor the last) stem from ethnic bias rather than genuine legal criteria, since Shas is seen as promoting the interests of Sephardic voters. Harish reinforced that perception when he then ruled that Der’i and Pinhasi had to quit their senior government positions because of the indictments his own office had handed them. Again, this was far more a moral-political decision than a legal one, since nothing in the law books at the time mandated this step. Harish based his ruling on what he called “fundamental principles of justice and government” rather than on any specific law. The only possible result was that the indictments, in the eyes of Shas’ voters and anyone unconvinced of their guilt, looked like merely another attempt to further a comprehensive political-ethnic campaign against Shas.

Politicization of the post reached its height, however, in the case of Ya’akov Ne’eman. Prime Minister Netanyahu named Ne’eman his justice minister in June 1996, and a journalist with a long history of grievances against Ne’eman petitioned the High Court against the appointment the same day. The petition accused him of a number of criminal offenses, most of which had already been investigated and found baseless. One charge, however, troubled the court: The allegation that Ne’eman had attempted to suborn a witness in Der’i’s trial. This was based on a 1992 police memorandum of a conversation between a police officer and the witness, who allegedly told the officer that Ne’eman was trying to get him to change his testimony. Both the police and the State Attorney’s Office had known of the existence of the memorandum for four years, but had never considered it worth investigating. In response to the petition, however, Attorney-General Michael Ben-Ya’ir said there was “no choice” but to open an inquiry into the allegations. After a full police investigation, State Attorney Edna Arbel (who took over the case because relations between Ben-Ya’ir and Ne’eman had become so acrimonious) found that there was not enough evidence to charge Ne’eman with suborning a witness, but decided instead to charge him with perjury and obstruction of justice for his behavior during the court hearings and police inquiry—charges which a trial court later found baseless—and Ne’eman was forced to resign on the strength of the Pinhasi ruling.

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