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From Meir Shamgar to Avichai Mandelblit: This is how the Attorney General became the most powerful man in Israeli democracy | Israel today

2022-01-21T21:13:48.344Z

The idea of ​​the rule of law is that every person should have his day in court. We have a distortion: we tell the Minister that if your position is visible to us, you will have representation in court, and if it is not visible to us - then there will be no conflict between Spokesman Gideon Hausner and Justice Minister Dov Yosef in 1962 led Ben-Gurion to form a committee Headed by Supreme President Shimon Agranat to clarify the status of the adviser.The committee determined that the last word is given to the government



It was noon.

Yitzhak Rabin summoned to him for a meeting the Attorney General, Yosef Harish, together with senior prosecutors.

He asked to hear their legal opinion regarding a petition filed against him in the High Court demanding that he immediately dismiss the Shas leader, Interior Minister Aryeh Deri.

A few days earlier, Harish had presented the indictment against Deri to the Knesset.

Rabin sought to dismiss the petition against him and delay the departure of the minister, who assured him ahead of time that if an indictment was filed against him in court, he would resign from his post in government.

The question was about the timing - whether Rabin must fire Deri immediately, as petitioners demand, or whether it is possible to wait a while for Deri to leave as he promised.

Aharon Barak and Meir Shamgar // Photo: Amit Shabi,

Harish's response shocked Rabin.

He informed him that he agreed with the petitioners' knowledge, and that Deri must leave - and immediately.

Rabin was furious: he asked to know on what basis Harish had established his position, since it had no basis in law.

Not even that - Harish informed Rabin that he would not agree to present any position in the High Court other than the position he had just presented.

Rabin erupted and demanded that prosecutors defend him in the High Court, but Harish did not agree to change even one ruling. Rabin asked him to appoint a private lawyer to present his position - but Harish also refused. For the first time in the history of the State of Israel, Opinion itself and without any anchoring in the law, that he has the authority to instruct the Prime Minister how to act, and that he can deprive him of the right of representation in court.

Rabin did not understand what had happened to Harish.

Although he did not appoint him to the post, no significant disagreements had arisen between the two up to that point.

Harish was aware of Deri's early commitment to resign, and even confirmed it.

One day his skin suddenly turned.

Rabin's office estimated that plowing had collided with him in order to please the legal brass, which mocked plowing and presented it as a rubber stamp of the government from the first moment of his appointment.

Menachem Mazuz and Yehuda Weinstein // Photo: Gideon Markovich,

Shortly before the confrontation with Rabin, Harish appeared before the Knesset's Constitution Committee and sounded particularly aggressive. He drummed on the committee table, telling Knesset members that he alone was weighed against the entire government.

"What he said," Amnon Levy described what was happening in his article in the newspaper "News", "sounds something like this: If the government unanimously decides to take action, and I alone will issue an opinion that the matter is legally invalid, the government decision is null and void. "They say, I am the foreign minister, I am the defense minister, I am the interior minister, the truth is that without my permission you can do nothing. By law, I am the government."


Rabin considered dismissing Harish following that dramatic meeting at noon, as the situation created between them was unbearable. In no country in the world can the Attorney General instruct the government what to do, let alone prevent it from being represented in court. In the State of Israel, murderers and rapists, and even Nazi criminals, are also entitled to representation. How is it possible, then, that the prime minister, the man who represents the majority of the country's citizens, is not entitled to representation in court? Rabin's assassin, Yigal Amir, was given legal representation a few years later; Rabin - no.

Avichai Mandelblit // Photo: Gideon Markovich,

The level of suspicion between the two was rising.

Nahum Barnea estimated, perhaps after briefings from the Prime Minister's Office, that Rabin would like to "bomb the Ministry of Justice building on Salah a-Din Street from the air."

Amnon Abramovitch compared Rabin's situation to the PLO leaders with whom he negotiated the Oslo agreement that summer, 1993. PLO leaders may think there is nothing like occupation and repression, Abramowitz wrote, but Rabin is convinced that "as long as they did not taste a damn thing" "The arm of the Supreme Court ... they do not know what imperialism is, and that the cruelest of them all is legal imperialism."

"What's the panic? What's the pressure?"

The end of Avichai Mandelblit's well-publicized tenure as Attorney General is a good time to examine how the position has grown to enormous proportions.

It seems that the precedent set in the Deri affair continues to resonate to this day, and that a return to the Rabin-Harish saga shows that all the complexity in the relationship between the role of the prime minister and the government itself and its leader is in it.


The confrontation between Prime Minister Rabin and Speaker Harish took place almost completely under the radar.

Most of the media attention in the summer of 1993 was negotiated between Israel and the Palestinians.

The central question on Deri's issue was how his possible resignation would affect Rabin's government and its stability.

Almost no one noticed the argument between Rabin and Harish, which was to affect Israel long after Deri was prosecuted.

It seemed like a complicated legal quibble that interested only a handful of experts.

But without the public being aware of this, a precedent was set then that exists to this day, according to which the Attorney General is in fact above the government, and can veto any of its decisions.

Gideon Hausner // Photo: GPO,

Here and there one could still read about the confrontation.

The editor of the Davar newspaper, Yoram Perry, did not understand why he plowed on such a tall tree.

"And that what happened?", Perry wondered, "it's all a matter of timing, a postponement of several weeks ... so what's the panic? What's the pressure?".

Amos Keinan wrote that "not every attorney general is necessarily an intellectual gem," and an editorial in the newspaper "News", entitled "The Attorney General's Betrayal," states that the attorney general's explanations for the change in his position "are an insult to intelligence."

This legal farce rolled to the doorstep of the Supreme Court, which was asked to hear the petitions.

On the one hand, the petitioners voiced their position, and on the other hand, the Attorney General voiced their position as well.

Both sides agreed that Deri should be fired immediately.

Only Rabin's position - Yuk.

The most basic rule of the legal system, of arguments here and there, of making pros and cons, and a judicial decision at the end, is thrown out the window.

"Shut up the government"

The court of course accepted the petitions and ordered the dismissal of Deri (and also of Deputy Minister Rafael Pinhasi), but no less important - and in fact, much more important in the long run - accepted Harish's position, ruling that Rabin could not present a different position in court. Of the Attorney General.

The advisor's position, the court ruled, is binding on the government.

The court even reprimanded Rabin for conveying his position written on paper, noting that he did not address it at all in his decision.

The first spokesman, Yaakov Shimshon Shapira,

Because yes, millions of Israelis go to the polls every few years. Their elected officials form coalitions and appoint ministers - all to carry out their policies. But all this in vain: the Attorney General can, in vain and without giving an account to the Knesset or the public, prevent any action from them and even deprive them of their day in court. It so happened that a small group of jurists, Supreme Court justices, gave another jurist, the attorney general, unprecedented power, without any of them being authorized to do so by law.


Naturally, members of the Knesset on behalf of the opposition welcomed the decision and praised the "eradication of corruption" under the direction of the Attorney General. On the day the court published its decision, a large right-wing demonstration was held in Jerusalem against the agreement being formed with the PLO. Deri's dismissal seemed like an achievement in their favor.

Some senior jurists have, however, pointed out the problematic nature of the decision.

Haim Cohen, a former Supreme Court justice and former attorney general, David Ben-Gurion, argued that if the government did not want the advice of its attorney general, he could not, "and it is not appropriate for him to shut up."

Moshe Ben Zeev, who was the attorney general in the 1960s, said: "I do not understand at all what happened there ... they said the prime minister was represented, and he is represented by someone who says he is not right, so how is it? ... It happened here Constitutional distortion. "

Most prominent in her criticism was Prof. Ruth Gavison, later the winner of the Israel Prize in Law, who claimed that the decision to prevent Rabin from being represented in court was "puzzling."

She mentioned that in democracies there can be no absolute power in the hands of any of the authorities, including the Attorney General.

"A more correct solution," Gavison said, "would be to say that the Attorney General as his name is: advises the Government on the legal situation."

Yosef Harish,

A few years later, Gavison said even more harsh words: "Rabin should have fired Harish, which Harish did to Rabin in this case seems to me a first-class constitutional scandal. A mediocre jurist ... I think this is a constitutional scandal. "

Here is a very partial list of past situations in which the Attorney General forced his position on the government, argued against it in court or refused to represent it: This happened to Ehud Olmert when he was Finance Minister in the Ariel Sharon government regarding the Israel Lands Administration;

Again to Olmert when he was prime minister and tried to appoint Yoel Lavi to a senior position;

In recent years to Science Minister Ophir Akunis who refused to appoint a senior scientist who supported the refusal;

And Minister of Internal Security Amir Ohana when he asked to change the criteria for granting weapons licenses.

Did not get a representation against Goldreich.

Shasha-Biton // Photo: Gideon Markovich,

In 2020, the attorney general banned the government from setting up a commission of inquiry to investigate the Department of Police Investigations (DIP), and even argued against it in court.

"Do not appoint a consultant to ignore"

To this phenomenon, of forcing the adviser's position on the government and refusing to represent it in court, must be added another phenomenon, and that is the growing tendency of the adviser to issue legal opinions in any field.

For example, when US President Donald Trump announced his peace plan in 2020, Mandelblit said the government would have to explain the urgency of its acceptance before the forthcoming elections.

Perhaps even more important is that ministers who understand from the attorney general that he does not intend to support their position or the policy they are about to promote - simply give up their intent.

Cabinet ministers, elected by the public to advance their policies, are forced to adjust their positions to what the attorney general will agree to defend in the High Court.

The public was busy in Oslo, and the affair was an Archimedean point in the relationship between the attorney general and the government.

Aryeh Deri on his way to prison, 2002 // Photo: GettyImages,

Dr. Eitan Levontin, one of the most prominent researchers in Israel of the Institute of the Attorney General, says in an interview with "Israel Hashavua" that the situation in Israel is "exceptional, extreme and unfounded.

It is completely contrary to practice in other countries, nor does it have any anchoring in the law.

There is no law in Israel that authorizes the adviser to give the government an opinion at all, certainly not an opinion that requires it. "

Under Israeli law, Levontin explains, "the government is the executive, not the attorney general. When the attorney general represents the government in court, he acts by virtue of being the government's attorney. The two most powerful powers he has are to give the government a binding opinion and silence it in court. "They are not enshrined in law and are contrary to the basic foundations of law and order. On the one hand, there is no law, and on the other hand, the powers are exceptional in strength.

This was not always the case.

Levontin says that the first-generation advisers to the state were indeed very powerful, and usually listened to them.

"You do not appoint a legal adviser to ignore him, but because you trust him, and usually do what he says."

The difference is that none of the first advisers thought his opinion was binding on the government, and would not have thought of attacking it in court, as Harish did to Rabin for example.

If their position was rejected on an important matter, they would be willing to resign or be fired.

A dispute between Attorney General Gideon Hausner and Justice Minister Dov Yosef in 1962 led Ben-Gurion to set up a legal committee headed by Supreme Court President Shimon Agranat to clarify the legal situation regarding the attorney general's status.

The committee ruled that the last word is given to the government, and that in cases of disagreement it may act contrary to its opinion.

The other governing authorities, that is, those at a lower level than the government, must obey the legal opinion of the adviser in order for there to be governmental uniformity.

Another committee of jurists, chaired by Justice Meir Shamgar, adopted in 1998 this distinction between the government itself and the other authorities below it.

Conflict in the Ministry of Finance.

Sharon and Olmert Photo: EP,

Plaintiff's sharp teeth

How, then, did it happen that Yosef Harish's precedent was backed by the Supreme Court and has taken root to this day?

One answer to this is the weakness of the political system.

Prof. Daniel Friedman, who is also the recipient of the Israel Prize for Law and a former Minister of Justice in the Olmert government, explains in the book "The Wallet and the Sword" that the failure of the Yom Kippur War led to severe damage to public confidence in Israel.

The cases of government corruption in the mid-1970s, and later in the late 1980s and early 1990s, led to feelings of disgust towards the political system, and to the hope that seemingly objective individuals, such as legal advisers or Supreme Court justices, would better serve the public interest than politicians. .

Meir Shamgar and Aharon Barak, who served as legal advisers from 1968 to 1978, were two of a series of very impressive advisers whose personalities and talents, according to Levontin, "created an aura around the Attorney General's institution."

The political system has tended not to confront the jurists, in part because it is divided and divided, and needs every segment of support.

Gradually the jurists gained more and more power, ignoring what had been accepted before, and all this without anyone stopping them.

It so happened that legal advice in the 1950s and 1960s became a legal dictate in the Deri case, and has been ever since.

But there are other explanations, Levontin says, such as "the fear of the criminal prosecutor's sharp teeth."

The Attorney General in Israel is not only the one who gives the government an opinion and represents it in court, but also the head of the General Prosecution, that is, the one who decides to open an investigation and file an indictment.


"Naturally, ministers are afraid of the criminal power of the counsel. I am not talking about persecution or malice on the part of the counsel or the prosecution, but about the nature of people and institutions.

The legal system tends to crowd lines when it receives criticism or feels threatened.

When a strong bureaucratic establishment feels threatened, convinced of its righteousness and thinks its power is necessary for the rule of law, it may attribute bad intentions to those who think otherwise.

"Ministers and politicians understand this, and it seems that at least some of them are afraid to confront the adviser - even a completely legitimate confrontation - and perhaps find themselves marked as 'enemies of the rule of law'."

Another issue is the relationship between the Supreme Court and the Attorney General.

It was the judges and not the Knesset who gave the excessive power to the attorney general, Levontin says.

Many judges have served themselves, prior to court appointments, as legal advisers: out of the last eight legal advisers, five have been appointed after their term of office to the Supreme Court.

Judges have the option of thwarting an appointment to the Supreme Court.

According to the method in Israel, Supreme Court justices can do so because of their power in the Judicial Selection Committee.

"If a legal adviser is interested in being appointed to the Supreme Court after his tenure, then he needs judges. He constantly appears before those judges who may later determine his personal fate."

The result is that the attorney general is becoming more and more representative of the court and less of the government.

All options are prohibited

The status of the Attorney General in Israel is unprecedented in the world. Here are what Haaretz wrote a few years ago in Haaretz: Prof. Shlomo Avineri, winner of the Israel Prize in Political Science and Director General of the Ministry of Foreign Affairs in the first Rabin government: "No and no. The correct answer is: the Attorney General of the Israeli government."


Avineri added that the attorney general in Israel concentrates in his hands "powers that are unparalleled in any democratic state. The fact that this is a person in charge and not elected, only intensifies the damage to democracy."

There is indeed a consensus that the Attorney General in Israel is exceptional compared to what is accepted in the democratic world.

A position paper of the "Israel Democracy Institute" from the late 1990s stated that the attorney general has "extensive powers unparalleled in other democratic regimes."

A 2017 study by the Ecclesiastical Forum compared the situation in Israel to that in the United States, Britain, Canada and Germany. In all these countries, the Attorney General is a political figure who is identified with the positions of the government.

The government (or the president in a presidential regime) can act contrary to the attorney general's position, and also dictate to him the position he will present on behalf of the court.

In addition to this dictation, the government can seek outside legal representation if it so wishes (except in Canada).

In all these countries, even each minister individually can act contrary to the Attorney General's position.

In Israel, on the other hand, all these possibilities are forbidden.

The hematopoietic array

"The current situation in Israel is a serious distortion that is inconceivable, and which is in sharp contrast to the rule of law," says Prof. Yoav Dotan, head of the Chair of Public Law at the Hebrew University and former dean of the Faculty of Law.

The alphabet of the rule of law is that every person is entitled to be represented in court. The poor beggars and the facilitators of rapists are entitled to be represented in court. That he was raped, even if all the evidence against him. "

According to Dotan, "The whole idea of ​​the rule of law is that every person should have his day in court. We have a distortion: we tell the minister, 'If your position is seen by us, you will have representation in court, and if it is not seen by us, then you will not be represented at home. The trial '".

Dotan believes that the High Court's decision to prevent Rabin's representation in the Deri case was incorrect, but also believes that in practice, in most cases the attorney general does not confront the government. Conflicts only arise in relatively rare cases, especially those with .

He gives as an example the Oded Goldreich affair, which the Israel Prize Committee recommended to be awarded the Israel Prize in the Study of Mathematics.

Former Education Minister Yoav Galant and current Minister Shasha-Biton have decided not to adopt the recommendation because of Goldreich's position on Ariel University.

"The Minister of Education says that because of his position she does not want to give him the Israel Prize, because the Israel Prize also has value considerations. No one disagrees that there are value considerations," says Dotan.

"Imagine that it would turn out that a certain Israel Prize winner is a fan of the Nazi party or that he did a terrible thing, no one would have complained to Sarah. These are matters of values, in which there is no black and white."

He said, "There is a position of the minister here that can certainly be defended in the High Court. "The position may not win in the High Court, and it may even be said that its chances of winning are not high - but it does exist. So in that case, the minister will not be represented?"


Dotan calls the current situation in Israel a "hempathetic system", named after the character from the book "Alice in Wonderland", because in this theater of absurdity, two parties appear before the court who actually agree with each other - and both attack the government. "It's an addictive game," he says.


Levontin uses a different image from the world of literature.

The strengthening of the status of the counselor, he says, has a problematic expression in words and language.

"A binding opinion is in fact not an opinion but a directive - but in legal parlance it is called 'opinion' and 'advice.' "Really through another lawyer. Advice in Israel is not advice, and representation is not representation."

These distortions, according to Levontin, only interfere with clear thinking: "They are reminiscent of George Orwell's Newspeak, and are completely contrary to the principles of law and order accepted in the world.

"Since the late 1980s, our legal system has been driven by a sense of urgency and mission. It feels like the Dutch boy with his finger in the dam, that everything must be done to protect the rule of law. The threats to the rule of law certainly exist, and should be fought. But the goal is a bit "It has sanctified the means, and the struggle for the rule of law is sometimes conducted in a way that itself does not align with the rule of law. A natural and healthy fear of the government and politics has become a kind of phobia, which is unnatural and unhealthy.

***


Ultimately, the address for this problem should be with the elected officials.

Cats do not excel at maintaining obesity, and humans do not tend to give up the power given to them.

On the contrary, they have a tendency to want more and more of it, unless they are stopped.

This is true of politicians, but also of lawyers, who have accumulated excessive power in Israel in recent decades.


The dry fact is that nowhere else in the world is there a figure with such extensive powers as the Attorney General of Israel.

Only the Knesset should and can define what the powers of the adviser are, what he is allowed to do and what he is not.

As long as this does not happen, the democratic disruption in Israel will only get worse.

After all, power is too serious a matter to be left in the hands of jurists alone. 

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Source: israelhayom

All news articles on 2022-01-21

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