How the Government’s Attorney Became Its General

By Evelyn Gordon

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

While the early attorney-generals all endeavored to expand the independence of their position, even the most power-hungry understood that some questions were simply not their business. A case in point was Hausner’s exhaustive 1960 report on the Lavon affair, in which a reserve officer was accused of forgery and other serious offenses as part of an alleged attempt to frame former Defense Minister Pinhas Lavon for ordering an Israeli undercover unit in Egypt to sabotage British and American targets in the 1950s. Hausner decided, for a variety of reasons, that criminal proceedings could not be initiated against the officer, and then raised the question of non-criminal sanctions such as dismissal. He concluded that he was not the proper person to decide such questions, since he was not the officer’s superior, and that the “appropriate bodies will have to consider whether to retain his services in the regular army.”¹⁰

Ben-Ze’ev showed similar restraint in the continuation of the Lavon affair, when David Ben-Gurion, on the basis of new evidence, challenged the findings of a 1960 ministerial committee which had absolved Lavon of responsibility. In 1964, Ben-Ze’ev concluded that the committee’s decisions were indeed deficient in many respects, but stressed that its decision to terminate the inquiry into the affair was a matter of policy rather than law (since the decision had been made by an elected, not a judicial, body), and he thus had no power to overturn it. “If the government feels a mistake was made, then it must correct the error at its own initiative, and if a citizen was harmed by an act of the cabinet, he has the right to take his case to the courts,” he wrote.¹¹

That the attorney-general not only was, but ought to be, subordinate to the government was widely accepted. As Ben-Ze’ev told the Knesset shortly after leaving his post as attorney-general: “It is clear that in the end the government has the upper hand, because it has the authority to fire the attorney-general…In order to reach a desirable state of affairs, it is necessary…not to create an institution which the government will not be able to influence short of the extreme option of firing.”¹²

The nature of the attorney-generalship, however, underwent a dramatic change during the tenure of Ben-Ze’ev’s successor, Meir Shamgar (1968- 1975). Shamgar came to the job from a stint as the army’s judge-advocate general, a position parallel in many respects to his new post but where, in his own words, “they knew that my opinions were legally binding, and that I came to meetings not to be silent but to express my opinion.”¹³ Shamgar was determined to inculcate the same expectations in his new position—and to a large extent, he succeeded. It is no accident that journalists soon nicknamed him “CEO of the State.”¹⁴

Shamgar found his golden opportunity in a 1968 amendment to Basic Law: The Government. The amendment, meant to formalize an already existing practice, stated that “the minister responsible for implementation of a law may take upon himself any power given by that law to a civil servant, except for powers of a judicial nature.” Shortly after the law’s passage, Shamgar went abroad on government business, and Justice Minister Shapira prepared to assume the powers of the attorney-general himself, as had always been done in the past in such cases. Shamgar, however, responded with a novel interpretation of the new law: The attorney-general’s powers were “of a judicial nature,” he said, and therefore could not be assumed by the minister.¹⁵

The notion that the head of the prosecution—one of the two opposing sides in every criminal case—is a judicial rather than an adversarial role was a radical departure from the traditional Western perception of the job, and one that had been explicitly rejected by a majority of the MKs in the Knesset subcommittee which discussed the bill.¹⁶ As if to drive home the point, a proposed amendment which would have explicitly excluded the attorney-general from the list of civil servants whose powers could be assumed by the minister was later rejected by the Knesset as a whole.¹⁷

Yet Shapira inexplicably accepted Shamgar’s ruling. By ceding the right to assume Shamgar’s powers, Shapira forfeited an important vehicle for ensuring the political accountability of the attorney-general. Yet perhaps more importantly, he enabled Shamgar to effect a crucial paradigm shift: The attorney-general was no longer a political figure, but a judicial oneׁand therefore no longer a servant of the government, but its keeper.

Shamgar lost no time in applying this new paradigm to accomplish one of the most dramatic innovations of his tenure. Prior to Shamgar, the attorney-general was considered to be “the government’s attorney,” and was expected to represent it in court whether he agreed with its actions or not—just as an ordinary lawyer is expected to represent his client’s interests regardless of his own opinions. But because Shamgar saw the attorney-generalship as a judicial rather than an advocatory role, he believed the attorney-general should be not the government’s lawyer, but its legal decisor—and if he disapproved of the government’s actions, he thus had a right to deny it legal representation.

In 1970, Shamgar exercised his new power by refusing to represent the government when Helen Zaidman, a Reform convert from the United States, petitioned the High Court of Justice against the Interior Ministry’s refusal to register her as a Jew. Shamgar felt that in light of a previous High Court ruling, the government’s stance was illegal, and for the first time in Israel’s history, an attorney-general forced his opinion on the government by denying it representation in court.¹⁸ Not only did Shamgar himself refuse to appear, but he said he would not permit any of the attorneys in his department (all of whom were on the government payroll) to do so either.¹⁹

Shamgar’s refusal nearly caused a coalition crisis, which was prevented only by the petitioner’s own decision to undergo an Orthodox conversion and drop her petition. But except for the religious parties (who were concerned only with the political and religious implications of Shamgar’s decision) there was virtually no criticism of Shamgar’s unorthodox move; on the contrary, it enjoyed widespread support. In one commentary on the case, for instance, Ya’akov Rosenthal of Ha’aretz wrote that the proper interpretation of the law was “unequivocally in favor of the petitioner, and therefore in favor of the attorney-general’s refusal to oppose her petition.”²⁰ Rosenthal was one of the few commentators who not only lauded, but fully grasped the import of Shamgar’s move (though in a startling bit of revisionist history, he insisted that Shamgar was merely applying the conclusions of the 1962 Agranat Commission):

For all the substantive import of the problems raised by the Zaidman case, the entire affair is secondary to the challenge it presented Mr. Shamgar in his rejection of the mission imposed on him. Instead of “Who is a Jew?” we may now ask: “Who, or what, is the attorney-general?”…[He] possesses a thoroughly independent, quasi-judicial role and status, not dependent on any body whatsoever, including the government and the justice minister; and this is not only his right, but his duty. He may adopt the opinion of any other body, but only to the degree that it convinces him. Moreover, not only the justice minister but even the government as a whole do not bear any responsibility, even parliamentary, for the attorney-general’s behavior…In the long run, those who today cry foul will benefit from the positive precedent the Israeli attorney-general has set.²¹

Shamgar’s view of himself as the government’s judicial supervisor also led him to another fateful conclusion: The attorney-general’s office should not merely respond to requests, but should initiate action. Unlike his predecessors, Shamgar did not wait until a minister asked for a legal opinion before issuing one. Anytime something appeared improper in his eyes, he would issue an opinion without being asked, and then circulate it as a binding norm. By the end of his tenure, he had amassed hundreds of legal opinions in ten thick volumes, which are still referred to by Justice Ministry employees as “Shamgar’s Bible.”²²

Ironically, the same man who recast the attorney-generalship as a judicial role was also responsible for involving the office in political affairs to an unprecedented degree. Perhaps because of his self-definition as a sort of judicial overseer, for whom no government action was outside his purview, Shamgar involved himself extensively in the day-to-day affairs of government. He was invited to attend most cabinet sessions—a forum from which the attorney-general had previously been excluded unless specifically needed²³—and he became involved in a host of issues which were more political than legal. For instance, he negotiated an agreement with the Jordanian electric company to supply power to neighborhoods in east Jerusalem; he headed a government committee on the development of the town of Ma’ale Adumim; and he arranged a settlement between the government and the Jewish Agency regarding the allocation of money from abroad.²⁴

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