Every word that Attorney-General Elyakim Rubenstein wrote to Prime Minister Ehud Barak was correct. The democratic legitimacy of a caretaker government embarking on negotiations that will bind subsequent governments in countless ways, regardless of the outcome of the negotiations, is highly questionable. Such veteran Labor stalwarts as Professor Shlomo Avineri and Professor Shimon Shitreet have powerfully made the same point.
The concessions Barak is prepared to make would, as Rubenstein wrote, tear apart the nation. Rubenstein’s skepticism about any agreement founded upon extravagant promises by an outgoing Democratic president, which would require American aid in the billions, the deployment of American troops, and approval by a Republican Congress and president, is solidly based. So is his sceptimism about the intention of the Palestinian Authority to comply with any "end of conflict" agreement into which it enters.
At the same time, Rubenstein’s critics are also right to attack him for expressing himself primarily in public policy terms. The statement that there is "no legal limitation" on the government’s authority to negotiate should have been the end of the matter as far as the attorney-general was concerned.
Actually that statement itself is far from self-evident. A strong a fortiori argument based on an analysis of the purposes of a caretaker government and other legal limitations placed on its authority – e.g., with respect to the appointment of ambassadors – can be made against the negotiations. Presumably just such an argument will be made by petitioners to the High Court of Justice who have challenged the government’s right to negotiate.
Having failed to make that argument, however, Rubenstein should have remained silent. Certainly he should not have expressed his private opposition to the "agreement regarding the Temple Mount" nor his own policy judgments. Contrary to his concluding assertion, he was under no "obligation to say what [he] said."
Yet Rubenstein’s hurt, and even outrage, at the criticism leveled at a loyal, hardworking civil servant is also understandable. For years he has been issuing non-legal opinions on the propriety of the actions of a host of public figures without a word of complaint from those on the Left who now protest so loudly.
After deciding not to prosecute then Prime Minister Binyamin Netanyahu in the Bar-On affair, he issued a report detailing his "suspicions" concerning Netanyahu’s awareness of an illegal conspiracy. Yet in a subsequent High Court hearing, the State Attorney’s office admitted that the evidence against Netanyahu has been so weak that a court would likely have thrown out any charge without even requiring the presentation of a defense.
More recently after closing the file against Netanyahu on charges of receiving bribes, Rubenstein chose to give vent to his opinions on the propriety of Netanyahu’s actions. Then the Left was filled with praise for Rubenstein’s forthright comments on ethical, not legal, norms.
Rubenstein’s misbeggoten decision to prosecute Rabbi Ovadiah Yosef for incitement and insulting a public official, contained much pontification, replete with learned halachic citations, concerning other statements by Rabbi Yosef that Rubenstein deemed "offensive" but not legally actionable. Given the lack of criticism to which he was subjected in these earlier instances, Rubenstein can be forgiven for having concluded that the attorney general is meant to be the national scold.
The furor surrounding Rubenstein’s letter to Barak should call attention to one of great anomalies of the Israeli legal system: the inordinate power vested in the position of the attorney-general to veto virtually any government action or policy.
In the 1993 Pinchasi case, the Supreme Court ruled that attorney-general’s opinion is binding on the government, even when he is doing nothing more than expressing his personal opinion about proper governmental norms. While every Israeli citizen is free to challenge any governmental action in the High Court of Justice, the one party that cannot secure a hearing on its legal claims is the government where the attorney-general has taken an opposing view. Pinchasi effectively turned the attorney-general into the Supreme Court’s delegatee to keep an eye on the executive branch, without even the possibility of appeal from his opinions.
Evelyn Gordon has demonstrated in her seminal article, "The Hijacking of Israel’s Attorney-General" (Azure, Summer 1998), that Court President Aharon Barak’s opinion in Pinchasi was merely the culmination of the vast expansion of the attorney-general’s power by previous holders of the office Meir Shamgar, Yitzchak Zamir, and Barak himself.
It was Shamgar, later court president, who first refused to represent the government’s position in the Supreme Court, and it was he who first began issuing legal opinions without having been solicited to do so by a governmental minister. Shamgar’s successor, Aharon Barak, forbade Ariel Sharon from serving on the Interministerial Security Committee in the first Rabin government on the grounds that the appointment was not in accord with the "rules of good government." Later Barak objected to the Finance Minister’s declaration of a tax amnesty designed to recover millions of dollars in uncollected taxes on the grounds that it was bad policy. Thus the attorney-general was transformed from the arbiter of what is legal to the enforcer of good government and policy.
Already by 1986, Hebrew University constitutional law expert, Professor Claude Klein described the attorney-general’s power as having grown beyond "logical proportions." Yet attorney-generals following Barak only continued to expand that power. Michael Ben-Yair refused to defend a coalition agreement between Prime Minister Rabin and Shas that would have obligated the government to pass legislation whenever the Supreme Court struck down municipal by-laws affecting religious interests. Though, as Gordon points out, promises to enact certain policies into law are standard in all coalition agreements, Ben-Yair declared this one "inappropriate, and not to be acted on."
In the Pinchasi case itself, Attorney-General Yosef Harish ruled that a minister under indictment cannot continue to serve, even though the explicit statutory statute required dismissal only upon criminal conviction. His judgment was therefore a purely policy one.
When Attorney-General Rubenstein makes policy judgments like "inappropriate," contrary to "good government," "unreasonable," he is thus doing nothing more than invoking a power successfully claimed by a succession of attorney-generals, and ratified by the Court. Those who now complain – correctly, in my opinion – should have thought of that earlier.