The attorney-general has become the emissary of the court rather than the government's lawyer
By JONATHAN ROSENBLUM1506-think(photo credit: Ariel Jerozolimski)
To judge from opinion polls, most Israelis would be hard-pressed to name one action of the Olmert government that they support. Well, I can: the appointment of Professor Daniel Friedmann as Justice Minister.
The appointment of Friedmann, a Israel Prize-winning jurist, to head the Justice Ministry hopefully sets a precedent for more cabinet ministers appointed on the basis of expertise. One of the great weaknesses of our coalition governments is that cabinet posts are divvied up as political spoils.
In addition to bringing real expertise to his position, Friedmann is on the side of the angels when it comes to defining the "rule of law" in Israel. On one side of the debate are those who equate the "rule of law" with maximizing the power of the Supreme Court. The enemy of the "rule of law," in their view, is "politicization," i.e., anything that confers power on the elected branches of government, both of which are inherently suspect.
The other camp would substitute for politicization the word democracy. In their view, the rule of law in a democracy means that the law-making power rests with the elected representatives, and the role of judges is to apply statutes enacted by the legislature. When courts rewrite statutes according to their lights or impose a set of legal norms that have no basis in statute, the result is not the rule of law, but, in former Justice Menachem Elon's trenchant formulation, the rule of the judge.
Friedmann is firmly in the latter camp.
It was natural, if not inevitable, that the two camps would cross swords over the selection process for Attorney-General. The power of the Attorney-General in the current system is almost entirely a creation of the Supreme Court and a series of assertive attorney-generals who went on to the Court. And it is immense.
In the 1993 Pinchasi case, the Supreme Court ruled that the Attorney-General's opinions are binding on the government, even when he is doing nothing more than expressing his personal opinion about proper governmental norms. It is enough for the Attorney-General to pronounce some government decision to be "not in accord with the rules of good government," "bad policy," or "inappropriate" and the government is completely stymied.
Under Court president Aharon Barak, traditional judicial restraints were abandoned. Every private citizen can challenge any government action with which he disagrees by appealing to the high court. The only party that cannot get a ruling on the legality of governmental action is the government itself, where the Attorney-General refuses to defend its position.
THE ATTORNEY-GENERAL has thus become the emissary of the Court rather than the government's lawyer. By refusing to defend the government's legal position, he spares the Supreme Court the messy business of enunciating legal rules to justify its policy preferences.
Like our anomalous method of judicial selection, in which the three sitting Supreme Court justices on the judicial selection committee exercise virtual veto power over the selection of their future colleagues, the enormous power of the Attorney-General has virtually no parallel in any democratic legal system.
By statute, the selection of the Attorney-General is exclusively delegated to the government. Yet for daring to insist that he (and not just the president of the Supreme Court) be involved in choosing the head of the committee to vet candidates for Attorney-General, and that the government choose from among three candidates and not be presented by the committee with a fait accompli, Friedmann has been pilloried by ex-justices and the Court's acolytes in the media as the great enemy of the rule of law.
Justice (ret.) Mishael Cheshin compared Friedmann to Sennacherib, and declared that he is not Menachem Mazuz's boss. True enough, that would be the Supreme Court. Haaretz's Zev Segal wailed that this week's cabinet compromise over the selection procedure for the next Attorney-General gives a political figure (the Justice Minister) a role in appointing the Attorney-General and deprives the Court President, an "apolitical" figure, of control of the process.
By what measure are justices "apolitical?" Is it because they have no ideology? No, that can't be. Didn't Aharon Barak himself say that the justices must give voice to the views of the "enlightened" segment of the population?
Is it because they confine themselves to the interpretation of statutes? Not likely. The Court has claimed for itself the right to reverse any government decision - e.g., how to protect school buildings in Sderot - with which it disagrees, and is recognized by friend and foe alike as the most activist high court in the world.
Is it because justices are above suspicion of influencing the Attorney-General's prosecutorial functions? Hardly. Not by accident has the Attorney-General's office long been the most reliable stepping-stone to the Supreme Court, and an ambitious Attorney-General will know the policy preferences of the justices, who control the judicial selection process.
Three outspoken critics of the Court's judicial activism found themselves facing trumped-up charges: former Justice Minister Yaakov Neeman, who lost his post as a consequence; Reuven Rivlin, whose nomination as Justice Minister was dropped because of the opening of a baseless file; and Dror Hoter-Yishai, former head of the bar association. Another reform-minded justice minister, Haim Ramon, was soon out of office after a questionable prosecution on minor charges. Compare their treatment to that of Tzahi Hanegbi, who was only indicted on serious charges, after he was no longer Justice Minister and could be of no further use to the legal establishment. Just a coincidence?
The only thing that makes the Court President apolitical is that she is not elected. Woe to the democracy in which being a member of the elected branches of government is the ultimate bar to being entrusted with any decision-making authority.
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