The Netanyahu government’s plan to enact wide-ranging judicial reform has taken center stage in Israeli politics, causing tens of thousands of opponents to take to the streets. On Monday, the Constitution, Law and Justice Committee will debate a part of the plan dealing with the proper role of ministry legal advisers, chief among them the attorney general (the position’s formal title is “Legal Adviser to the Government”).
The draft legislation heading to committee would allow ministers to choose whether or not to follow legal advisers’ opinions. “Legal advice given to the prime minister and any minister of the government will not bind them,” the bill’s summary states. “The government, the prime minister and any minister of the government may reject the legal advice and act contrary to it.”
Justice Minister Yariv Levin, in unveiling the “first stage” of his judicial reform plan on Jan. 4, stressed that the legal advisers are “advisers, not deciders, who represent the government and not their personal positions.” He called for an end to the “subjugation of the government to an unelected rank.”
They’re bringing legal advisers back down to earth, “making them understand that they’re advisers, that they’re not in control,” Haran Fainstein, a retired Israeli judge who teaches at Bar-Ilan University’s Department of Criminology, told JNS.
“There’s no law that says a government representative has to act according to his or her legal advisers’ wishes. It was a decision of the Supreme Court years ago that made it mandatory. It was Shamgar who made the decision,” said Fainstein.
Meir Shamgar was a former Israeli attorney general who later became president of the Supreme Court. Journalist Evelyn Gordon explained in a 1998 Azure magazine article titled “How the Government’s Attorney Became Its General” that the attorney general’s powers were of “recent vintage” and that Shamgar was responsible for changing the paradigm, from the attorney general being a “servant of the government” to being its “keeper,” exercising his self-bequeathed powers for the first time in 1970 when as attorney general he refused to represent the government before the Supreme Court.
“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,” Gordon wrote. Nearly 25 years later, the Supreme Court under Shamgar in a 1993 ruling decided, “The attorney-general was not really the government’s legal adviser, but its legal arbiter.”
Said Fainstein, “The Supreme Court unjustifiably claimed, against the law, that when the attorney general says something, the government is bound by it.” The attorney general can not only refuse to represent the government but can refuse to allow the government to seek outside counsel, he said. The most recent case took place this month, when Attorney General Gali Baharav-Miara refused to represent the government on whether Shas Party chairman Aryeh Deri could serve as a minister, given his conviction on tax fraud. The case’s first hearing was on Jan. 5.
Yonatan Green, executive director of the Israel Law & Liberty Forum, told JNS that the attorney general is a civil servant in the Israeli system. “Here you have a situation where a civil servant, whose job it is to represent the government, refuses to do so,” Green said.
In the Deri case, the government has representation because it was permitted to hire its own counsel. “However, if she wanted to, the attorney general could have decided the government shouldn’t get any representation. That should be deeply objectionable to anybody with strong notions of procedural fairness, of executive discretion, of the separation of powers in democratic government,” said Green, a licensed attorney in Israel and New York, who noted that he was offering his personal opinion and not that of the Israel Law & Liberty Forum.
Private counsel isn’t the same as being represented by the attorney general’s office, he noted. Private lawyers are unlikely to have the expertise and resources of government attorneys, “whose job it is to represent the government before the Supreme Court and for whom administrative law and constitutional law is their bread and butter.”
The real problem, said Green, “is what we can call a representative monopoly. The attorney general enjoys a monopoly on representing the government in court and judicial proceedings and legal proceedings.”
Green added: “The attorney general both offers advice and represents the government in court. The dual role creates an implied threat. The attorney general doesn’t even have to say it, but it’s perfectly understood that if the government does not accept his opinion, if the issue is challenged in court, the attorney general might choose not to represent the government.”
Legal reformers call for dividing up the position of attorney general. The Religious Zionism Party proposed this in its legal reform program, announced shortly before last November’s national elections. They want it split three ways: 1. A legal counselor, who will provide non-binding advice to the government; 2. a public prosecutor, who will represent the government in all criminal proceedings; and 3, a legal representative, who will represent the government in non-criminal, or civil, proceedings.
Fainstein advocates this approach. He said it’s important to split the criminal and civil positions because it’s rare that an attorney will have expertise in both. Attorney General Gali Baharav-Miara “has no experience in criminal cases, none whatsoever. Some of her statements prove that she does not understand criminal law, which is not something to be ashamed about. She is an expert in civil cases,” he noted.
“So they should split it into three. Number one will be the legal adviser. He will provide his legal opinion to the government. Number two is the one who’s in charge of civil cases. Number three is somebody who knows criminal law. He will be like the District Attorney that you have in America,” said Fainstein.
Green agreed that the position should be divided, but is unsure that it will be enough to prevent a monopoly.
“You still have the same problem. The government is essentially at the mercy of high-ranking civil servants who obviously have their own allegiances, their own considerations, and their own decision-making mechanisms. The solution I think is that the attorney general, or anyone with the power to represent the government in court, must do so and to the best of their ability,” he said.
“If they don’t feel that they can represent the government well, either because they think that they’re making a terrible legal argument, which lawyers sometimes have to do if they want to represent their clients, or if they feel that somehow it doesn’t square with their conscience, or with their morals and their beliefs, they can leave the job. No one’s forcing this person to be attorney general. It’s not slave labor. They can quit and the government can hire somebody else for the role, a person who’s willing to represent the government,” said Green.
Fainstein said much the same.
“After 60 years, I can’t think of even a single case in which an attorney couldn’t come up with at least one good defense in favor of his client. So personally, my idea, not only mine, is that if you cannot defend me, please go home.”