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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, the Supreme Court of Israel issued a ruling which radically altered the constitutional makeup of the state’s executive branch, transforming the position of the attorney-general—once a relatively inconsequential post, which to this day still bears the modest official title of “Legal Advisor to the Government”—into one of the most powerful positions in Israeli government. In the wake of this ruling, the government’s “Legal Advisor” has the formal authority to veto decisions of the executive, at his sole discretion, without warning and without the possibility of an appeal. All this because, as the Supreme Court has ruled, the attorney-general is not really the government’s “advisor” at all. He is, rather, its judge.
The court reached this startling conclusion in the following fashion: The attorney-general, in addition to bearing responsibility for the corps of state prosecutors, is also the government’s formal legal counsel. As such, it is the attorney-general—and only the attorney general—who has the authority to represent the government in a court of law in the case of a suit brought against it. But this being the case, what happens when the attorney-general finds himself agreeing with a suit filed against the government? That is, what happens when the attorney-general is himself of the opinion that a government action is indeed illegal? It was such a case which faced the Supreme Court in September 1993: The court was asked to decide whether Deputy Religious Affairs Minister Rafael Pinhasi had to resign his post after being indicted on charges of tax and party-funding violations. Prime Minister Yitzhak Rabin had refused to fire Pinhasi, prompting Attorney-General Yosef Harish—who sharply disagreed with Rabin’s refusalׁto declare that he would not be able to defend Rabin’s position in court.
In the Pinhasi verdict, signed by Supreme Court President Meir Shamgar and four other justices, then-Deputy President Aharon Barak pondered whether Harish was out of line in refusing to represent the government. Barak’s conclusion was that really the shoe was on the other foot: The question was not whether Harish could refuse to appear in court, but whether Rabin was permitted by law to ignore Harish’s opinion. And to this, Barak offered a stunning response: The attorney-general was not really the government’s legal advisor, but its legal arbiter, and the government was bound to his decisions.1
Jurists hailed Barak’s dictum as an important victory for the rule of law: For the first time, the government had been subordinated by law to the dictates of the attorney-general. Yet in many ways, this ruling merely formalized a breathtaking conceptual revolution effected twenty-five years earlier by none other than Meir Shamgar, when he himself held the post of attorney-general: That the attorney-general was not an advocatory role, but a judicial one; not the facilitator of government action, but its judge.
A quarter of a century later, Shamgar signed his own creation into the law of the land. Now, thanks to the Pinhasi verdict, one manׁunelected and often appointed by a previous governmentׁhas the legal right to thwart government policy, or even dictate policies of his own. His power extends to every facet of the workings of government, including the determination of who may or may not occupy a given ministerial post. How this came to pass, without the slightest hint of legislative sanction, is yet another story of the disfiguring of Israel’s young democracy by a well-meaning, hyperactive judiciary.
 
The legally sanctioned concentration of such great power in the hands of the attorney-general is of recent vintage in Israel, yet its roots go back as far as the founding of the state.
Under the British Mandate, the position of attorney-general followed the model of the United Kingdom: In Britain, the attorney-general enjoyed ministerial status, and was a Member of Parliament, with the public accountability it entailed; in Mandatory Palestine, the attorney-general was a member of the Executive Council, the closest thing to a cabinet in the governance of the land.2 After independence, Israel’s provisional government had apparently intended to retain the model by placing the authority to open and close criminal proceedings—the key power of attorney-generalship—in the hands of the newly created minister of justice. The original plans for the Justice Ministry included no mention of an attorney-general; rather, a civil servant called the “Legal Advisor to the Government” offered non-binding legal opinions to the government when called upon to do so.3 But Ya’akov Shimshon Shapira, the first occupant of the post (who served from 1948-1950), set his sights on a greater share of authority, and within a few weeks had persuaded a complaisant justice minister that he should be given the power of prosecution as well.4 While his authority was therefore still limited to criminal affairs, by investing such power in a civil servant with no direct accountability to the public at large, Israel had already departed sharply from the British model.
Yet the new office did not immediately acquire the independence it enjoys today. For many years, the attorney-general’s subservience to the government was taken for granted, as was implicit in the post’s nebulous legal status: A creation of the government, the position was never formalized in any law, and the attorney-general could be dismissed at the government’s pleasure.
Thus it was understood that the government’s “legal advisor” would reflect a sympathy for its political interests. Shapira, for instance, was an active figure in Israeli politics; he later became a Member of Knesset, and eventually a minister in the Labor government. And no eyebrows were raised when his successor, Haim Cohen (who served from 1950-1960), simultaneously held the posts of attorney-general and justice minister for a period of several months. Since the attorney-general was so closely identified with the cabinet’s interests, no one saw any conflict between the two roles.5 Indeed, Cohen’s later attempts to make the attorney-general more independent (after coalition needs had deprived him of his position as a minister) elicited considerable public criticism. A case in point was Cohen’s decision to prosecute coalition MK Shlomo Lorincz for foreign-currency violations without first informing the relevant ministers. Ha’aretz ran an editorial sharply critical of Cohen’s actions, and suggested that in order to rein in the attorney-general, Cohen should either be made a minister, with full parliamentary responsibility, or be made fully subservient to the justice minister:
The Israeli arrangement is nothing but an unhealthy compromise between two viewpoints which are fundamentally opposed.ֹ The practical result of essentially having two justice ministers, one of whom is accountable [to the government] while the other is not, is that the minister who is not accountable can do whatever he pleases, without worrying about parliamentary reactions... It must be decided who between them will be the real justice minister: The cabinet member who bears this title, or the attorney- general, who is but a functionary.6
Cohen’s successor, Gideon Hausner (1960-1962), also struggled for greater independence, and with similar results. Hausner, in fact, sparked a government crisis over his demand for total independence, and so great was his influence that he managed to persuade the cabinet to set up an independent commission, headed by Supreme Court Justice Shimon Agranat, to resolve the issue.
The Agranat Commission proved a disappointment for Hausner. While it did rule that the attorney-general was “free and independent” in making prosecutorial decisions, it added that he had to consult with the justice minister, and if the latter disagreed with his decision, the minister had the right to assume the attorney-general’s powers himself—in effect granting the justice minister veto power over the attorney-general’s decisions.7
The commission also concluded that as far as government actions were concerned, the attorney-general’s opinion was in no way binding. While the government should regard his opinion as somehow “reflecting the existing law,” it ruled, “the government is entitled to decide how it should act in accordance with its own considerations.”8 And future governments internalized this ruling. In 1966, for instance, when Justice Minister (and former Attorney-General) Ya’akov Shimshon Shapira came under attack in the Knesset for an appointment of which Attorney-General Moshe Ben-Ze’ev (1962-1968) disapproved, Shapira began his response by reminding his colleagues that only the courts had the right to be legal decisors: The attorney-general was merely an advisor.9


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