Judicial jujitsu awaits Israel’s new A-G
Feb 5, 2016 | Amotz Asa-El
Politics and the law, wrote Israeli jurist Haim Cohen, must be separated because the one thrives on partiality and the other on impartiality.
At the same time, the legislative and executive branches must also interface routinely and intensely, a dynamic that in most democracies happens, one way or another, through the office of the Attorney-General (A-G).
However, whereas most countries, including Australia, assign this office to a politician, Israel’s 13 Attorneys-General have all been unelected career jurists, seven of whom, including Cohen, proceeded from that position to the Supreme Court.
Even so, due to its unique combination of juridical authorities, Israel’s apolitical A-G is actually one of the state’s most powerful offices. Now, as the fourteenth A-G, Avichai Mandelblit, prepares to assume his six year term of office on February 1, this institution reaches a crossroads after decades in which it stood at the epicentre of multiple public storms.
The Israeli A-G’s Hebrew title, Hayoetz Hamishpati La’memshalah, which translates as “Legal Advisor to the Government”, is misleading.
The A-G is indeed privy to all the government’s plans of action, and provides advice about their legality. Yet in addition to that, the A-G is also assigned with defending the government in court, with approving any legislation it plans to introduce, and with heading the Department of Public Prosecutions, meaning that he has the last say on any suspect’s prospective indictment.
This already potent cocktail has been further bolstered in recent decades in the wake of what is widely referred to in Israel as “the juridical revolution.”
It was initiated by former Supreme Court President Aaron Barak, when he was A-G in the first Rabin government in the 1970s and then further expanded when Barak moved to the Court.
Operating opposite a decaying political elite that had been in power since Israel’s establishment in 1948, Barak spearheaded the prosecution of senior public figures, ranging from a candidate for governor of the Bank of Israel who ended up in jail for taking a bribe, to Rabin’s wife, Leah.
Ms. Rabin was indicted, convicted, and fined for violating currency laws by holding a then-illegal US dollar bank account. Yitzhak Rabin’s consequent resignation in 1977, and Labor’s subsequent loss of power, added up to a turning point not only in the history of Israeli politics, but also in the history of its judiciary. The office of the A-G now emerged as the political system’s mighty watchdog.
The precedent had now been set for future A-Gs to confront any figure of authority suspected of felonies. That is how a succession of A-Gs ended up indicting a succession of senior politicians, like Minister Arye Deri who was jailed for bribery, fraud and breach of trust; former finance minister Avraham Hirschson, who was jailed for embezzlement in a previous position; former president Moshe Katsav, serving a jail term for sex offenses; and former prime minister Ehud Olmert, who next month begins serving an 18-month jail term for a bribery conviction related to his previous political role prior to becoming PM.
The A-Gs were pivotal not only in indicting these high-profile convicts – they also became, over the years, crucial in the process of making key public appointments.
Most notably, the appointment in 2010 of Maj-Gen Yoav Gallant as IDF Chief of General Staff was cancelled after outgoing A-G Yehuda Weinstein ruled that the general’s alleged expansion of his house into several square metres of his community’s public domain rendered him unfit for this appointment.
Similarly, in 2007, Inspector Yaakov Ganot was disqualified from being appointed head of Israel’s Police following the ruling of the A-G of the day (current Supreme Court Justice Menachem Mazuz) that an acquittal the previous decade in a bribery case barred him from the appointment, despite its being technically legal, because the Court had been critical of his conduct even while finding insufficient evidence to convict.
These cases stirred a debate about the A-G’s arguably excessive powers, and the reach of the entire judiciary possibly having exceeded reasonable limits.
A major turning point in the A-G’s evolving omnipotence came in 1993, when then-premier Rabin refused to fire a Deputy Minister (Raphael Pinchasi of the Shas party) whom the State’s Attorney was preparing to indict for misappropriation of funds.
The A-G of the day, Yosef Harish, thought Rabin was required to fire the minister and refused to represent the government in the Supreme Court, when Rabin’s refusal to fire Pinchasi was appealed.
The Supreme Court’s ruling on this clash of governmental branches was that the A-G, despite being the government’s advocate, was not legally bound to defend its position, and moreover, the government, despite being the A-G’s nominal hirer and boss, had to obey his or her “advice” without exception.
Critics now argued that the government’s advisor had morphed into its judge, and the government was being deprived even of the right anyone else enjoys to have a representative defend its position in court.
Power had indeed shifted.
Back in Ben-Gurion’s days, the A-G’s bridging position was fashioned as the executive branch’s representative to the judiciary – now it seemed to have evolved into the judiciary’s superintendent in the government.
This flew in the face of a precedent from the previous decade, when allegations arose that agents from the Shin Bet internal security agency had killed two terrorists after they had been captured. A-G Yitzhak Zamir demanded the agents be indicted only to be blocked by then premier Shimon Peres and his deputy Yitzhak Shamir – both of whom felt the allegations were actually part of a ploy to unseat the then head of the Shin Bet.
Ultimately, the agents were indicted, but only after the allegations reached the media and Zamir was fired.
That was in 1986. Post-1993, the A-G and the rest of the judiciary, which in Israel are all unelected, seemed to many to have progressed from checking the power of the elected executive branch to dominating it.
Moreover, beyond the A-G’s growing clout, the Supreme Court has steadily expanded the judiciary’s sway over the years, by being increasingly activist in annulling laws passed by the Knesset on the grounds that they were unconstitutional. In 2002, for instance, it rescinded a law that legitimised unlicensed radio stations, in 2009 it annulled legislation to privatise jails, and in 2012 it cancelled legislation that allowed ultra-Orthodox men to work despite having avoided military service.
The growing alarm of elected politicians in the face of the judiciary’s growing power has so far been disjointed and ineffective.
On the Left, little remains of former Labor leaders Peres and Rabin’s spirited bouts with several A-Gs. Instead, Labor now sees itself as the judiciary’s protector as it fends off attacks by nationalists who dislike the Supreme Court’s defence of Palestinian rights, and by religious circles who disdain its liberalism.
In the centre, Ehud Omert last decade appointed as justice minister an outspoken opponent of the post-1993 “judicial revolution”, Hebrew University law professor Daniel Friedman. The appointment lasted two years, during which Friedman was effective in other realms, but not in reining in the powers of the judiciary. Most notably, his plan was to split the A-G’s office, so that one jurist would head the department of prosecutions, while another would act as legal advisor to the government. But this idea never even made it to the Knesset.
On the Right, meanwhile, the judiciary is roundly derided as overly empowered, politically tendentious, and socially aloof, as most judges hail from the established, secular, affluent, liberal elite.
That is why incoming A-G Mandelblit’s appointment is still being greeted by some as politically suspect, even though he is universally accepted as professionally qualified.
The 53-year-old Mandelblit is different from most of his predecessors in two ways: he is a retired general and a former cabinet secretary.
Having served most his career in the military’s legal system, where he rose to IDF Advocate-General with the rank of Major-General, Mandelblit is not a product of the civilian legal system.
There has never been an A-G with such a largely military background. Then again, one of his predecessors as IDF Advocate-General, Meir Shamgar, eventually became a Supreme Court Justice and President. Furthermore, no one seriously disputes that the experience earned in indicting soldiers and overseeing the legality of the military’s operations equips one for doing similar things in the civilian system.
As cabinet secretary, Mandelblit’s transition also has a precedent. Elyakim Rubinstein was cabinet secretary under Yitzhak Shamir and Yitzhak Rabin before becoming A-G under Netanyahu, Ehud Barak and Ariel Sharon.
Yet Mandelblit’s work as cabinet secretary under Netanyahu was his only civilian job, and thus his progression from aide to the Prime Minister to the same man’s legal watchdog is immediate, as opposed to Rubinstein, who served a stint as a district judge in between.
As a jurist, Mandelblit has earned a reputation for impartiality and practicality, questioning, for instance, the utility of demolishing the homes of convicted terrorists, and commending human-rights organisations for exposing wrongs which should not be covered up.
However, the closeness to Netanyahu his previous job entailed may mean that the Prime Minister hopes to use this appointment in order to have an A-G who thinks twice before confronting his old boss, and thus passively shrinks the office’s pretensions and reach.
The new A-G, who holds a PhD from Bar-Ilan University and became religiously observant at age 26, will be tested initially in his leadership of the legal system’s unfolding war on Jewish fundamentalist terror, whose occasional attacks on Palestinian Arabs, Jewish gays, and Christian churches have become a serious problem for public order.
Mandelblit will also be expected to display leadership in trying to bring legal order to the prickly issue of illegal immigration, where Israeli policy, like that of many other developed countries, has been a continuous stream of improvisations. Mandelblit’s view that all immigrants must be debriefed so as to actively search for those with a genuine case for political asylum might clash with the government’s quest to send back as many of them as possible.
Having said this, it is impossible to predict just what will end up dominating Mandelblit’s six-year term. If there is anything predictable and attractive about this thankless job, it is the unpredictability of the political scandals, legal dilemmas and institutional clashes by which every A-G is ultimately judged.