Opinion | The Politics of the Rule of Law

Extreme polarization is leading to an impasse in Israel.
By | Feb 25, 2020
Israel, Spring Issue 2020

In February, Justice Minister Amir Ohana of the Likud Party announced his decision to appoint a senior attorney, Israel’s top white-collar crimes prosecutor Dan Eldad, as the interim State Attorney. It’s a fairly important job: The State Attorney heads the office of attorneys who represent the state before legal forums (something like the American solicitor general). Because Israel does not have a fully functioning government, Ohana can fill the position only on a temporary basis.

This seemingly simple act of governing ended a long turf war with a sweet victory for Ohana and a bitter loss for Attorney General Avichai Mandelblit, who had demanded that Ohana appoint a different candidate. Israel’s Attorney General is the legal counsel for the government and also directs state prosecutions; his work is very much tied to the work of the State Attorney, and yet he had to accept, under protest, an appointee who wasn’t even on his list. The politician beat the government-appointed legal bureaucrat and made his point: If it’s up to him, the days are over when state attorneys, up to and including the Attorney General, dictate to the government what it can and cannot do.

Politicians in Israel routinely complain about the legal bureaucracy. Their grievances are occasionally directed at the Supreme Court but in many cases focus on the state attorneys and the legal advisers in government ministries. Their general argument is simple: Lawyers at all levels of government exploit legal arguments to promote their ideological agendas, resist oversight and use investigation and prosecution to intimidate their critics. In short: They are too powerful, and, with the backing of the Supreme Court, prevent the people—that is, the elected ministers and Members of Knesset—from exercising their legitimate power.   

Eldad’s interim appointment is a petty example of an ongoing battle over things great and small. Large issues include the Supreme Court’s blocking of a law against illegal immigration; restrictions imposed by the Attorney General on appointing police chiefs and other officials; and senior state attorneys who sabotaged attempts to appoint an effective commissioner for prosecutorial oversight, who might, for example, have been able to examine the tactics employed to bring indictments against politicians.

Other matters are minor, even infantile: The day after Eldad was appointed, several state attorneys left the WhatsApp group of senior Justice officials and formed a separate  group excluding their new boss. For them, this seemed like the necessary defiance of a politician who attempts to erode their independence. Justice Minister Ohana, in turn, saw proof that the attorneys don’t get it. “The state prosecutor’s office,” he said, “is not a private yard.”

The debate about the power of the law enforcement branch is old and tired, but it gains urgency in a year of three election cycles in which the prime minister is slated to stand trial. Criticism of state lawyers comes from many political quarters. A former justice minister from the Kadima Party, Daniel Friedmann, complained about the way they shield themselves from criticism (for example, by refusing to cooperate with an ombudsman). Former Labor and Kadima Minister Haim Ramon says government attorneys use their legal clout to sabotage critics’ careers. Israel’s President, Reuven Rivlin, disparagingly called the attorneys “the rule of law gang.” He was one of a few politicians subject to suspiciously timed criminal investigations—in Rivlin’s case, back in 2001—initiated just as the possibility arose that they might be appointed Justice Ministers.

Naturally, the attorneys have their own version of this story: They are under siege and are the last line of defense against political corruption. There is “an unprecedented delegitimization campaign against the Israeli law enforcement system,” says Dina Zilber, a deputy attorney general. Zilber has frequently clashed with politicians. Former Justice Minister Ayelet Shaked wanted her fired when Zilber criticized a bill that would allow government funds to be withheld from cultural institutions deemed insufficiently loyal to the state. But Zilber seems to believe that restraining politically motivated initiatives such as this is her job. She also believes, like many defenders of the legal system, that such oversight is necessary to block what law professor Mordechai Kremnitzer has called “the road to unchecked governmental power.”

The defenders of the legal branch believe that they know why the politicians have suddenly intensified their attacks, why Ohana was appointed Justice Minister and why they, the guardians of the gates, are suddenly scapegoats. It is all because of Prime Minister Benjamin Netanyahu’s investigation and indictment, they say. The prime minister wants to discredit the prosecution before he stands trial. He needs allies to support his claim that the investigation against him is “an attempted government coup against the prime minister through blood libels and a biased investigation process.”

Both sides succeed in making their case—and also in politicizing it. The prime minister and his allies have succeeded in their quest to delegitimize the institutions of law in the eyes of their voters. The trust of most right-wing and religious voters in the Supreme Court, in police investigators and in the Attorney General is declining. That is dangerous.

The attorneys, for their part, have succeeded in convincing Netanyahu’s rivals that the attacks against them are no more than a desperate attempt to save the skin of a corrupt politician. In practice, the debate over the power of the legal system has become yet another political football, and thus forced the voters and leaders of the center-left to come to the defense of law enforcement, lest the attacks on it help Netanyahu.

Both sides are correct: The legal system has too much power to shape Israel’s policies, and also, the motivation of recent critics of it is not pure. What this means in practice is obvious: To have a serious and necessary debate about the power of legal bureaucrats versus the power of elected officials, Israel must have a fully functioning government.

Shmuel Rosner is a Tel Aviv-based columnist, editor and researcher. His latest book is #IsraeliJudaism: Portrait of a Cultural Revolution.

Leave a Reply

Your email address will not be published.