Imagine you’re the CEO of a large private company. You employ and manage legions of workers in a variety of departments. Business has steadily grown and you believe it’s come time for your operation to go public. Months on end you confer with your financial team, preparing the all-important IPO (initial public offering), eagerly awaiting a stock launch that will advance your company by light years, benefit your employees and introduce your enterprise to investors across the globe.
To be sure, throughout the process you’ve involved your chief legal adviser, but he has increasingly become more of an obstacle as opposed to a facilitator. Interfering in your decisions, raising seemingly irrelevant issues of concern, even questioning your motives—you wonder who this corporate counsel thinks he is. Resolved to get the IPO completed, you have a frank discussion with this attorney. Yes, there are some corners we’re gently rounding out, encroaching on grey areas where the law isn’t entirely clear cut. But isn’t that the job of a legal adviser? To enable our efforts and bring them to fruition?
Before too long, you’re appalled to receive a summons to appear before a stock exchange regulatory official. But your shock turns to horror when you discover that the officer interrogating you is none other than your own company’s legal adviser! The same individual in whom you openly confided about some of your questionable business practices in preparing the IPO.
Sounds absurd? Not in Israel, where the attorney general serves as the purported “legal adviser to the government” while simultaneously heading Israel’s criminal prosecution system. Unwilling to comply with the adviser’s “advice?” Don’t be surprised to find yourself charged with heinous criminal offenses such as “fraud,” “breach of the public trust,” “government corruption” and so on.
“I’ll make him an offer he can’t refuse,” Don Corleone famously quipped, but even the Godfather could only dream of wielding a fraction of the power Israel’s attorney general possesses. Indeed, more than once it’s been argued that this is the most formidable position in the country. In addition to serving as both chief legal counsel to the government and head of the general prosecution, Israel’s AG has been granted sole authority to represent the state in all legal proceedings, as well as being the executive branch’s final arbiter of the public interest in any legal matter.
How did we get here? No honest analysis can ignore the Bar-On–Hebron affair of 1997, during Benjamin Netanyahu’s first term as prime minister. In what has since proved to be a recurring theme throughout his tenure, Netanyahu displayed the poorest judgment in his appointments to the highest positions of government. Even worse however was his abject inability to stand by his decision, no matter what public outcry it may have stirred. For those too young to remember, Netanyahu wished to appoint the private lawyer Roni Bar-On as attorney general, in a convoluted effort to enlist Aryeh Deri’s Shas Party to support the proposed Hebron concession deal with the Palestinian leadership.
The episode provoked such a scandal that the government was forced to set up a formal commission headed by former Chief Justice Meir Shamgar, tasked with establishing the proper procedure for appointing the attorney general, clarifying his/her official functions and laying down specific criteria for removal from office. No longer would the government be allowed to choose its own legal adviser, but rather a nomination committee, led naturally by a retired Supreme Court justice, would henceforth be endowed with the authority.
Over time, the office of attorney general has only grown in power, stature and appetite. Already in 1986, while serving in this position, the very same Meir Shamgar became the first attorney general openly to refuse to represent the government in a petition before the Supreme Court. Eventually this burgeoning autonomy evolved to such a degree that all government agencies up to and including the prime minister himself are in effect prevented from presenting their own contrasting stance to that of the attorney general.
Thus, in a series of pivotal decisions from 1993 onwards, Israel’s Supreme Court essentially ruled that the entire executive branch of government is in fact subservient to the attorney general, who maintains a monopoly on determining the state’s official position in any legal dispute.
In one such case, then Chief Justice Aharon Barak laid down the law:
“True, the attorney general’s position was different from the prime minister’s. They sought to convince each other, but they were unable to do so. In this state of affairs, the attorney general must represent the Prime Minister before us according to the attorney general’s legal perception….”
And even more to the point (in cases related to aforementioned Aryeh Deri and a fellow Shas Party minister):
“The prime minister sought to disagree with the attorney general’s opinion regarding the very essence of the applicable legal norm on the subject of removing a minister from his position. This approach contradicts the constitutional principle, already accepted in our system, by virtue of which the attorney general is held to be the authorized interpreter of the law with respect to the executive branch… and the prime minister, with all due respect, could not have been heard on these grounds at all.”
The import of these rulings could not be more startling. With incessant resolve and fortitude, Israel’s Supreme Court has declared time and again that freedom of expression, access to legal proceedings and a wildly expansive approach to “standing” are all fundamental rights enshrined in Israel’s “constitution” (i.e. Basic Laws). Yet none other than Israel’s chief executive shall be deprived of such privileges, if his own attorney general decides so.
No individual personifies this gross perversion of democratic principles better than the current attorney general, Gali Baharav-Miara. After blithely allowing such egregious acts by the previous government as the unconscionable unilateral forfeiture of nearly 1,000 square kilometers of Israel’s territorial waters to the Hezbollah-infested Lebanese government (less than three weeks prior to general Knesset elections), Baharav-Miara has since made it her singular aim to thwart even the most rudimentary decisions, acts and appointments by Netanyahu and his coalition.
In a petition filed by the cynically mistitled “Movement for Quality Government in Israel,” the Supreme Court was called upon to annul the temporary appointment (for all of three months!) of a senior law school lecturer to chair Israel’s Second Authority commercial broadcasting regulatory body. Not only did Baharav-Miara side with the petitioners against the government, she went so far as to prohibit the communications minister in charge of the appointment from being represented before the court by his own independent counsel.
With diplomatic restraint, the court’s majority opinion rejected the attorney general’s basic contention that the appointment was unlawful. Such a position was without merit, the communication minister’s decision was sanctioned under statute and even if there remained questions as to the particular procedure, they certainly did not warrant the court’s intervention.
More scathing though was the rebuke the court handed Baharav-Miara for her refusal to allow the communication minister’s request to be heard via independent representation:
“I turned it over and over, and yet could not find a solid legal basis for establishing such a standard [as argued by the attorney general]… I was not convinced that these references contain a basis, or even a mention, to this standard. Where we are dealing with such a sensitive issue, I believe that it is better to tread on as solid ground as possible. And as for the rest—go and learn.”
But even this openly aired opprobrium has not served to inhibit Baharav-Miara from her mission to impede the government from acting on behalf of the country’s citizenry, let alone caused her to show even a modicum of discretion and self-reflection. “The lady doth protest too much, methinks,” wrote Shakespeare. Indeed, this hyper-activist attorney general has only herself to blame for the government’s growing efforts to be rid of her.