Ayelet Shaked and the rule of law 

by Jonathan Rosenblum
June 18, 2015

In Israel, the charge that democracy is under threat is a sure sign that 
the person so charged has a far clearer grasp of what democracy means. 

The appointment of Bayit Yehudi MK Ayelet Shaked as justice minister has 
triggered the usual dark warnings against the impending assault on the rule of law 
and the foundations of Israeli democracy by the fascist goons of the Right.

Such hysterical reactions to any threat to lessen the power of Israel's Supreme Court 
are by now old-hat.

Then-court president Dorit Beinisch charged in 2011, for instance, 
that proposals to marginally lessen the veto power of the three sitting 
Supreme Court justices on the committee to select new justices represented 
an attempt to "undermine the democracy upon which our society rests." 
Never mind that Israel's method of judicial selection is absolutely unique 
among world democracies in the minimal input of the elected branches of 
government into the selection process, and the effective veto power granted 
to the three sitting justices on the Supreme Court over the selection of their 
new colleagues.

Charges about attacks on the rule of law are constantly recycled by the media 
to cut off any discussion of the government legal system in Israel, for one 
simple reason: They work. And they work best of all against moderately 
right-wing politicians eager to impress the media with their sophistication.

New Finance Minister Moshe Kahlon is but the most recent example; 
he has presented himself as a defender of Israel's legal system 
against the unlettered boobs.

But the longest-running example of the phenomenon is none other 
that Prime Minister Benjamin Netanyahu. Even as the intricacies of 
cobbling together a coalition forced Netanyahu to accede to Bayit Yehudi 
leader Naftali Bennett's demand for the Justice Ministry, Netanyahu was 
busy trying to shackle the new justice minister by denying her a seat on the 
Judicial Appointments Committee and the chairmanship of the Knesset Law 
Committee to Bayit Yehudi.

Like many on the moderate Right, Netanyahu finds himself constantly - 
and futilely - trying to curry favor with the media elites by committing 
himself to the "rule of law" and "Israeli democracy," as defined by them. 
The left-wing media can always bank on the inferiority complex of the Right.

So far, most of the fire directed at Shaked has centered on her support for 
legislation that would allow the Knesset to overturn Supreme Court decisions 
invalidating legislation by a supra-majority vote, as in Canada, and for changes 
in the method of judicial selection of Supreme Court justices.

But an even more crucial battle may lie ahead during Shaked’s tenure 
as justice minister - one over the status of Israel's attorney-general 
and the legal advisers to various government ministries. 
Dr. Aviad Bakshi of the Kohelet Policy Forum recently published a study 
comparing the position of the attorney-general in Israel to that in four 
other major world democracies: the US, the UK, Canada and Germany. 
And as in the case of judicial selection, Israel turns out to be a total outlier.

In each of the four major democracies, the attorney-general is a political 
appointee who serves at the pleasure of the head of government; he is an 
integral part of the government's executive branch. In the US, for instance, 
it has long been common for the attorney-general to be the cabinet member 
with the longest and strongest personal ties to the president. Think of 
Robert F. Kennedy serving as his brother's attorney-general.

In each of the above countries, the president or prime minister is free to 
accept or reject such legal advice as he may receive from his attorney-general. 
And if there is a difference of opinion between the head of government 
and the attorney-general as to the legal position to be adopted by the 
government, it is the former whose opinion governs.

The situation is diametrically opposite in Israel - something to remember 
when one hears that efforts to change the Israeli system to bring it in closer 
conformity with other leading democracies threaten democracy and the 
rule of law.

The Israeli attorney-general is not a part of the executive branch of the 
government or a political appointee. Rather he is "an extension of the 
long arm of the Supreme Court, [whose powers derive] from the 
blessing and encouragement of the Supreme Court," according to legal 
authority Yoav Dotan.

Candidates for attorney-general are vetted by a committee headed by 
a retired supreme court justice. His term in office is six years, which means 
there may often be no congruity between the government in which he was 
originally appointed and that which he currently serves. The prime minister 
cannot dismiss him.

In no sense is the attorney-general subservient to prime minister. 
Most importantly, his legal opinions are fully binding on the state. 
If he considers a government action illegal, he can refuse to defend 
that action in court, and his legal opinion is absolutely binding on the 
government. The government may not seek other counsel, nor will 
the court even hear any contrary legal arguments presented by the 
government.

Thus, we have in Israel the following paradox: The Supreme Court 
under former president Aharon Barak basically did away with 
traditional legal doctrines of standing and justiciability, in order to 
give every citizen his day in court. In the case of citizens complaining 
of government action, they may actually have two days in court.

The Supreme Court has condoned the practice of granting those 
complaining via the High Court of Justice about some government 
action a pre-High Court hearing by a special department in the 
State Attorney's Office, which is under the authority of the attorney-general.

If the citizen's complaint is found valid, the attorney-general may then 
inform the government that he will not defend the government's position 
in the High Court, and the government will lose automatically.

If the pre-High Court hearing is not resolved in the citizen's favor, 
he or she may still proceed to the High Court. But note, the government 
itself has no assurance of having its legal opinion - as opposed to 
that of the attorney-general - ever tested in court.

In no other democracy does the citizen face so few legal impediments 
to suing the government; in no other democracy is the government 
denied the right to have its legal position heard in court.

There is a good reason that no other democracy confers so much power on the 
attorney-general: It is profoundly undemocratic to have decisions of 
great impact made by a bureaucrat totally insulated from public accountability, 
and subject to no review.

The danger is greatly multiplied by the nature of Israel's current legal 
culture. Israeli law students have been taught, directly or indirectly, 
by Aharon Barak to believe that the world is filled with law and that there 
exists no issue for which a legal norm may not be enunciated by a judge 
or other legal authority of sufficient discernment.

Therefore, in determining that a particular government action is beyond 
the government's authority, the attorney-general need not point to any 
statute for support.

It is sufficient that it is "improper" in his view. The bounds between improper 
and illegal have been almost fully eroded by the Supreme Court.

Not by accident is the power of the attorney-general an entirely judicial 
creation with no basis in statute. In 1962, the government established 
the Agranat Commission to delineate the parameters of the attorney-general's power.

The commission explicitly acknowledged the "right of the government to decide 
how to conduct itself in a particular case according to its own weighing of factors," 
even when the attorney-general has given a contrary opinion.

Subsequently, however, attorney-general Yitzhak Zamir refused to represent 
the government in the Bus 300 case and asserted, contrary to its explicit wording, 
that the Agranat Commission had determined that the government is subservient 
to the legal opinion of the attorney-general.

In 1993, attorney-general Yosef Harish informed prime minister Yitzhak Rabin 
that Arye Deri could not serve as interior minister in his government, 
as he was under criminal indictment. The legal norm enunciated by Harish 
had no statutory basis, and Rabin objected to the order.

But the Supreme Court quickly set him straight; justice Eliyahu Matza 
declared that the attorney-general has the exclusive authority to determine 
the law with respect to the executive branch, and that the considerations 
of the government were thus, with all due respect, irrelevant.

The Supreme Court has thereby conferred an enormous discretionary 
power on the attorney-general. Doing so serves the interests of the court, 
which may prefer that crucial decisions be made in a low-visibility 
fashion far from the public eye. Attorney-general is one of the traditional 
stepping-stones to the court, and the justices can feel rightfully confident 
that those occupying the post, who need their support to ascend to the 
court, will anticipate their wishes.

But the attorney-general acting as the emissary of the court to put the 
brakes on the executive branch makes a mockery of traditional democratic 
notions of separation of powers. And where the attorney-general or his deputies 
do not share the political philosophy of the government, the vast power 
of the attorney-general allows him to repeatedly spoke the wheels of the 
government and thwart the will of the voters.

The requirement that legislators and the heads of the executive branch 
present themselves to voters at regular intervals guarantees accountability 
to the citizenry in a democracy. The judicially created powers of Israel's 
attorney-general, however, fly in the face of that democratic accountability. 
The attorney-general may make decisions involving hundreds of millions 
shekels, without ever having to answer to voters or engage in any of the 
weighting of actors that a government acting within budgetary limitations 
must undertake.

A classic example would be the determination by a deputy attorney-general 
that non-citizen Palestinians living in the Jerusalem area are entitled to 
social benefits from the National Insurance Institute. Just recently, 
Deputy Attorney-General Dina Zilber ordered the government to stop funding 
the World Zionist Organization's Settlement Division on the grounds 
that it is a private organization improperly exercising governmental functions. 
She went even further and ordered the Knesset to not vote in any allocations 
for the Settlement Division - another major breach in the separation of powers.

Yet as the Kohelet Forum points out, many other heavily funded private 
organizations such as the Council on Higher Education have long received 
large chunks of government funding for performing quasi-governmental 
functions, without running afoul of Zilber's strictures.

The point of distinction, as is so often the case in Israel, would appear 
to be more ideology than legality.

In Israel, the charge that democracy is under threat is a sure sign 
that the person so charged has a far clearer grasp of what democracy 
means, and is trying to redress one of the numerous anomalies that 
distinguish Israel from every other Western democracy - in terms of the 
amount of power conferred on unelected and unrepresentative lawyers 
and judges.