Think Again: How the A-G undermines democracy

It appears that the current Netanyahu government will not adopt all or even portions of the Levy Report on the Legal Status of Building in Judea and Samaria due to the opposition of Attorney-General Yehuda Weinstein. (I do not discount the possibility that Weinstein’s opposition is a fig leaf for Netanyahu’s own reluctance to adopt the findings of the committee headed by former Supreme Court vice president Edmund Levy.) Weinstein’s interference in the functioning of the government invites reconsideration of the immense powers wielded by the attorney-general and how they threaten Israeli democracy.

Immediately after the Knesset voted to dissolve, Weinstein sent a protocol to the cabinet secretary on the subject of “limitations on the authority of an ‘outgoing government,’” in which he warned that the government should confine itself to routine management functions until the swearing-in of a new Knesset. Ministers were instructed to seek prior clearance for any decisions from the attorney-general.

Yet Israeli law makes no reference to such an animal as an “outgoing government.” In the absence of such a concept, the presumption is that the government retains all its traditional powers and that what was formerly permitted remains permitted. The Basic Law of the government, under the heading “Continuity of the Government,” lists two circumstances in which there might be limitations on a transition government:

1. After elections but prior to the swearing-in of the new government;

2.Where the government has resigned following the loss of a no-confidence vote.

Even in those circumstances, restrictions on government decision-making are not required by classical democratic theory. (In the two months between the upcoming US election and the swearing-in of the new Congress, for instance, lawmakers – many of them lame ducks by virtue of retirement or electoral defeat – will be working around the clock to put together a deficit reduction bill for the signature of the president (who may himself be a lame duck) to avoid the catastrophic impact of the sequestration scheduled to go into effect on January 1.) But the democratic rationale in both of the cases enumerated above is at least clear: the transitional government has lost the confidence of the majority of the electorate.

Neither circumstance applies at present, since the current government has not lost a no-confidence motion and elections for a new Knesset have not yet taken place.

Given the rarity of the Knesset serving a full term and the many months between the dissolution of the Knesset and the swearing-in of a new one, only the presumption that the outgoing government retains all its previous authority prevents repeated government paralysis.

Moreover, the concept of “routine management” is uniquely inapplicable to Israel in light of the daily security threats with which we live. Some of the most dramatic military operations in Israel’s history were undertaken with elections already scheduled, including the destruction of Iraq’s Osirik nuclear reactor and Operation Cast Lead.

FOR HIS assertion that the present government has only limited decision-making authority, Weinstein relied primarily on dicta from then-Supreme Court president Aharon Barak’s opinion upholding the authority of prime minister Ehud Barak to engage in further negotiations with the Palestinian Authority at Taba after the breakdown of the Camp David negotiations.

The argument for restricting the government in that instance was far stronger than the argument for preventing the existing government from adopting the Levy Commission conclusions, in whole or in part. On one side of the equation, Barak had already resigned, after the outbreak of the second intifada, and was facing a near-certain thumping in the upcoming election for prime minister. Netanyahu, by contrast, did not resign and is still widely expected to win the next elections.

On the other side of the equation, the potential longrange impact of the Taba negotiations was far in excess of any possible impact from the adoption of the Levy Report. The concessions offered by Ehud Barak at Camp David were far outside the consensus and dealt with the most contentious political issues in Israel. At Taba, Barak sought to entice Yasser Arafat into a peace treaty with even more generous concessions. Such a treaty would have bound all future Israeli governments (though whether the Palestinians would have felt equally bound is questionable).

Insofar as the Levy Report concludes that Jewish settlement beyond the 1949 Armistice Lines does not violate the Fourth Geneva Convention or any other provision of international law, it reiterates the legal position of every Israeli government since 1967 – a position which also has implications for Israeli sovereignty in parts of Jerusalem.

At least some recommendations of the Levy Report – such as the creation of a land registry in Judea and Samaria and a special court for the resolution of land disputes – would likely require Knesset legislation for full implementation. That legislation would not shackle future governments or prevent them from passing new legislation of their own.

Unless Attorney-General Weinstein is advocating some new rule of asymmetry – whatever is permitted to leftwing governments is forbidden to center-right governments – the Taba precedent cuts against any limitations on the adoption of the Levy Report by the current government.

In point of fact, such an asymmetry does exist. It is child’s play to juxtapose pairs of Supreme Court decisions that are irreconcilable on legal grounds but are easily explained in terms of which side of the political map is advanced by the outcome. Remember, for instance, Justice Dalia Dorner’s injunction against the closing of the Palestinian Authority offices at Orient House shortly before the 1999 elections on the grounds that the decision to do so was “political.” Virtually every decision by any democratically elected government includes an admixture of practical political considerations, and courts traditionally avoid any inquiry into the motivations of governmental actors, particularly when the government is acting pursuant to its authority over foreign affairs. Only with respect to the Netanyahu government did Dorner see fit to break dramatic new ground.

THE POWER of the Supreme Court to create “norms” for government behavior out of whole cloth and then to apply those norms asymmetrically constitutes one of the greatest weaknesses of Israeli democracy. But the power of an unelected attorney-general, answerable to no one, to do the same is even more dangerous.

No other senior governmental legal official in the democratic world wields the degree of power of Israel’s attorney- general. His decisions are immunized from any form of review and are incapable of being contested by the prime minister. In addition, he supervises deputy attorney- generals who sit in every government ministry and are answerable only to him.

Most remarkable, the current position of attorney-general is almost entirely the creation of the Supreme Court – indeed of one hyperactive former attorney-general, Aharon Barak. It was the Supreme Court that endowed the attorney-general with binding authority to rule on every government action and which determined that those decisions cannot be contested by the government.

A comparative study of leading democracies – the United States, Great Britain, France, Germany, Canada, and Israel – by Aviad Bakshi and Meir Buchnik of the Kohelet Policy Forum shows that the position of the attorney-general in Israel is unique both in terms of his independence of the political echelons and the scope of his power.

Under former court president Barak, the Supreme Court followed the most liberal standards of standing and justiciability of any high court in the world. Any citizen aggrieved by a government decision could petition the Supreme Court for a restraining order. Indeed, aggrieved citizens gained two bites at the apple: Private citizens can also bring their complaints to the attorneygeneral and save themselves the trouble of petitioning the Supreme Court.

Absurdly, the only party that cannot be assured of having its legal position tested is the government itself. A negative opinion from the attorney-general and it’s game-set-match – the government loses. By contrast, in every other leading democracy, the attorney-general may give legal advice to the political echelons, but he is subservient to elected officials. Senior legal officials typically serve as the lawyers for the government or their particular ministry. Thus, former Yale Law School dean Harol Hongshu Koh, who once labeled president George W.

Bush the “torturer-in-chief,” now spends his days as legal counsel to the State Department defending the legality of the president’s drone strikes.

Under Barak and his successor Dalia Dorner, the attorney- general and his subalterns came to serve as emissaries of the court to maintain control of the executive branch. The position of attorney-general has long been a stepping stone to the court. And ambitious attorneysgeneral are acutely aware of the political leanings of the justices who control the judicial selection to the Supreme Court and eager to anticipate the desires of their court masters. (The control of the sitting Supreme Court justices over the selection of their successors is another anomaly of the Israeli legal system.) From the point of view of the justices, it is often preferable that crucial policy decisions be made far from the public eye by the attorney-general. It spares them the messy and onerous task of enunciating legal rules for what are essentially policy preferences.

The vast power vested by the Supreme Court in the attorney-general, an unelected figure not subordinate to the elected branches of government, is part and parcel of Aharon Barak’s conception of democracy as substantive – i.e., a panoply of rights, many of judicial creation – as opposed to a set of procedures assuring governance by elected officials who stand for election at relatively short intervals.

Now that a new post-Barak era has dawned on the Supreme Court, it is time for court president Asher Grunis to clip the powers of the attorney-general or, preferably, for the Knesset to do so.

The writer is director of Jewish Media Resources, has written a regular column in The Jerusalem Post Magazine since 1997, and is the author of eight biographies of modern Jewish leaders.