Law unto Himself?
Nov 24, 2009 | Amotz Asa-El
By Amotz Asa-El
Israel’s attorney-general is hardly known abroad, but a brouhaha surrounding his powers now threatens to undo Binyamin Netanyahu’s young government, under circumstances he apparently did not foresee.
Like many other aspects of the Israeli governmental system, the attorney-general’s authority evolved by trial and error. As part of its administrative inheritance from the British Mandate, Israel had no position of chief prosecutor. Instead, an attorney-general – never a politician and always a highly professional jurist – had oversight of the state-attorney and the regional attorneys. Thus, the attorney-general oversaw simultaneously the government’s actions and at the same time decided whether to approve police investigations against public officials and whether or not to accept police recommendations to indict government officials. Since the late 1970s, a succession of A-Gs have indicted many senior politicians, often ending abruptly illustrious careers. The victims included two presidents, one prime minister, another prime minister’s wife, a justice minister, a finance minister, an interior minister, a welfare minister and assorted mayors and lawmakers. At the same time, the A-G also became a permanent presence in cabinet sessions, not as a voting member, but as a non-voting observer, regardless of what was being discussed. Consequently, the A-G became privy to many of the government’s secrets – on top of already being feared by the country’s most powerful politicians, who realised the A-G may hold the key to their political futures.
Now Justice Minister Yaacov Neeman, himself a leading corporate lawyer, wants to redefine the A-G’s powers in a way that some regard as long-overdue and others deride as a thinly veiled plot aimed at weakening the judiciary.
If it’s up to Neeman, the A-G’s authority will be confined to the realms of civil and administrative law, as well as his role as the cabinet’s legal adviser. Meanwhile, a chief prosecutor, an office that does not currently exist in the Israeli system, will inherit his powers in the criminal sphere, including reviewing and approving investigations and indictments.
Such a division exists in most Western governments, and according to Neeman, will reduce what he judges as the “unbearable” amount of work with which Israeli A-Gs are ordinarily burdened. Better yet, it will improve Israel’s war on ordinary crime, which according to Neeman is suffering due to the A-G’s understandable, but still unaffordable, focus on high-profile investigations.
This blueprint, which Neeman said he would introduce for cabinet approval in mid-November, has been met with vehement judicial opposition. The initial salvo was released by three retired justices, all of whom are themselves former A-Gs and two of whom are former presidents of the Supreme Court. In a letter to Neeman, the three wrote that the proposed reform might prove a gamble and its hasty passage in the cabinet might be widely interpreted as “dangerous to the rule of law.”
Apparently inspired by the judicial elders’ move, State Attorney Moshe Lador decided to join the debate, albeit less politely. “This is a recipe for disaster,” he wrote, charging Neeman – who, by extension, is his boss – with launching “a quiet revolution” without first holding a proper, orderly and public debate. The outgoing Attorney-General himself, Menachem Mazuz, concurred the following day, saying that a weakened A-G’s office would quickly become politicised.
Not all agree, however. Hebrew University’s Prof. Shlomo Avineri, the high priest of Israel’s political scientists, noted that the Israeli A-G is even more powerful than most heads of state and that his powers are “an androgyny that sprouted in the wild fields of Israeli politics.” The fact that the prime minister has an adviser who also wields the power to indict him is a gross conflict of interest, explained Avineri, who thinks Neeman’s proposal deserves serious consideration. Boaz Okun, Director of the Courts’ Authority, and Prof. Amnon Rubinstien, dean of the law school at the Interdisciplinary Centre and a former chair of the Knesset Law Committee, also reportedly said the proposal deserves attention.
While jurists and academics debate the proposal’s feasibility and desirability, politicians and their parties are scrutinising its costs and benefits from their narrow perspectives. For Netanyahu, the results are alarming.
After initially giving Neeman reason to believe he may back his proposal, Labor leader Ehud Barak emerged with an emphatic rejection, dubbing the plan a threat to the legal system’s clout and independence. Barak’s stance reflects a common feeling among Israel’s veteran elite that the judiciary is a nature preserve, the last power centre where Israel’s original ruling class still rules, as opposed to the legislature, government, army and police, where new social circles have gradually replaced the founding elite. Even if he personally does not feel so strongly about the proposal, it is one cause around which Barak’s otherwise divided party can rally and circle its wagons. Conversely, if he wavers on this issue, Barak could find himself abandoned by his entire Knesset faction, a prospect he is in no position to afford politically.
Barak also knows that he is indispensable for Netanyahu. Should he and his party bolt the coalition, Netanyahu would likely end up with a narrow right-wing coalition that would make his international position even more uncomfortable than it already is.
At the same time, Neeman is also a weighty factor in Netanyahu’s political equation.
A 70-year-old expert on tax law and one of Israel’s most sucessful lawyers, Neeman has already served twice in the past as a minister under Netanyahu, including a stint as finance minister, and has long been a personal confidante and consigliari for the Prime Minister. Choosing between Neeman and Barak will therefore be a tough decision for Netanyahu, if it comes down to that. However, had it only been about picking between the two, Netanyahu’s choice, though harsh, would at least have been simple. He would sacrifice Neeman.
Neeman can be sacrificed because unlike the rest of Netanyahu’s 30 ministers, he is not a full-time politician. He is not a legislator and in fact, has never run for public office or taken part in party politics. As such, he lacks troops. Barak, meanwhile, is the coalition’s lynchpin as well as its moderate voice abroad. In fact, that may prove his proposal’s greatest weakness. Had it been introduced by a career politician its prospects would likely have been better, both because he would have wielded more power to begin with, and because he would have spent more time building support for his idea before thrusting it into the public arena. For now, it seems Neeman has caught the political and legal systems off guard and prompted too many politicians, attorneys and judges to react as if a guest who has just arrived in their home is demanding they redecorate their living room.
However, another key coalition member, the nationalist Avigdor Lieberman, staunchly backs Neeman’s proposal – while ironically awaiting the outgoing A-G’s decision concerning his own alleged money-laundering felonies.
Netanyahu’s joker in all this might be lurking outside his coalition, where Opposition Leader Tzipi Livni, herself a former justice minister, backs a version of Neeman’s reform, whereby a special prosecutor would be appointed to deal exclusively with public officials. Conversely, she would also consider amending the law so that the A-G’s indictments would require the approval of a specially appointed retired judge. Livni’s backing, if she decides to run with it, would lend the proposal a centrist and consensual aura and potentially create a momentum that may lead to its adoption.
At the same time, Livni’s stance is challenged by some in her own party, most notably her archrival Shaul Mofaz, the former defence minister. Herein may lie Netanyahu’s opportunity. If in the aftermath of all this commotion he ends up losing Labor but gaining a divided Kadima faction, then he will have killed several birds with one stone. In fact, it may give rise to suspicions that he had it all planned in advance.
For his part, if Neeman does, as he says he plans to, present his proposal to the cabinet by late November, this will pressure Netanyahu to make a decision quickly. Netanyahu is expected to play for time. He may be able to do so for a few weeks of “consideration”, but eventually he will have to take a stance. Once that happens, something will have to change: the coalition, the legal system or the notion that a guest can remodel the living room.