Supreme Court of Israel.
(photo credit: Wikimedia Commons)
Roll back the revolution In recent decades, largely under the influence of the judicial revolution launched by former Supreme Court president Aharon Barak in the 1980s, the freedom of lawmakers has increasingly been restricted by legal advisers from the Attorney-General’s Office.
Politicians elected through a democratic process are sometimes unable to implement the policies supported by their constituencies, because legal bureaucrats assigned to them by the Attorney-General’s Office refuse to support these policies. Instead of fulfilling their role as civil servants, who are supposed to act as advisers in a lawyer-client relationship, these legal advisers overrule elected officials.
In the process, Israel’s democracy has suffered.
On Wednesday, Justice Minister Ayelet Shaked lamented this state of affairs, declaring that it is not the attorney- general’s job to make decisions on legislative issues.
“A civil servant, as senior as they may be, has no veto” over legislation, said Shaked of the role of the attorney- general at the Kohelet Policy Forum in Jerusalem.
“The attorney general can advise. In the end, the decision is that of the elected representatives.”
Not everyone sees it that way.
Barak argued that the attorney-general and the advisers are under no obligation to defend the policies of the prime minister or any other government minister. That is because the attorney-general is the authorized interpreter of the law with regard to the executive branch.
He also argued that the legal advisers are appointed by the attorney-general and that politicians have no right to choose a different adviser who was more willing to cooperate.
And this tradition continues. During the Kohelet conference, Deputy Attorney-General Avi Licht defended the attorney-general’s right to veto legislation.
“In the cases in which the act is illegal, or borders on corruption, it is my obligation to prevent it,” he said. “The wisdom is to use this tool in only rare cases. The use of the right of veto is always done sparingly, even if it is convenient for many people to say that is not true.”
Legal advisers from the Attorney-General’s Office have over the years intervened on issues such as the need to fire ministers who were indicted but not convicted of a crime, even if the prime minister had no wish to fire them; the route of the train line between Jerusalem and Tel Aviv, which crossed the Green Line; Israel’s policy regarding providing electricity to Gaza during military operations; and the rezoning of agricultural fields owned by kibbutzim for housing.
Just recently, Mandelblit ruled that a bill barring the Conservative and Reform movements from using state-funded ritual baths [mikvaot] for conversions compromised religious freedom and therefore clashed with a Basic Law.
He has also weighed in on the legality of holding terrorists’ bodies and the implementation of a deal that would open up an egalitarian section near the Western Wall for non-Orthodox streams of Judaism.
One may or may not agree with the positions taken by the attorney-general. (We have welcomed Mandelblit’s opinion on the mikvaot issue for instance.) However, a distinction must be made between giving advice and even arguing against a position and taking the additional step of vetoing a piece of legislation or refusing to support a government position in court.
Ultimately, it is the role of our elected officials in the Knesset to legislate. Legal advisers have an obligation to alert these politicians to potential legal difficulties with a given bill. But the final decision regarding legislation should be left to the Knesset, not to civil servants who were appointed to offer educated advice, but not to interfere in the legislative process.
If legislation is passed which clashes with quasi-constitutional Basic Laws, it is the role of the Supreme Court to rein in the legislators. It is the role of the attorney-general, in contrast, to attempt to defend this legislation to the best of his or her ability or to step aside and allow someone else to take up its defense.
The old balance of powers that existed before the Barak revolution should be restored. The legalization of the political process should stop.