A Curious Animal


The “Legal Advisor to the Government” is a curious animal. Lately, his activities have become curious, too.

Like the mythological Centaur, who was half human, half horse, the office of the Legal Advisor comprises two different parts. On the one side is the person indicated by his title, giving legal advice to the government. The government is, of course, a political body. It is composed of politicians. When the government appoints its legal adviser, it chooses a person who suits its outlook and opinions.

On the other hand, the Advisor is also the highest law-enforcement officer in the land. As such, he has immense power. He holds the fate of many people in his hands, decides who will be indicted and who not, who investigated and who not. In this capacity he is supposed to be completely independent, devoid of any political and party leanings. Neither the government nor the Minister of Justice or any other minister has the right to give him orders.

On the face of it, these are two contradictory functions. A person appointed by the group of politicians called “government” cannot be independent. An independent-minded person cannot satisfy the government. Therefore, it has been suggested to separate the two functions, so that the government would go on appointing its Legal Advisor, while the Attorney General would be appointed by the President of the Supreme Court or an independent committee. These proposals were rejected, because all governments preferred the status quo.

Each Legal Adviser up to now has tried to solve the problem in his own way. When the late Haim Cohen held this office in the 50s (before being appointed Supreme Court justice), he was completely subservient to David Ben-Gurion, the then Prime Minister. Meir Shamgar, Aharon Barak and Yitzhaq Zamir, on the other hand, jealously guarded their independence and acted with great integrity. The present Adviser, Elyakim Rubinstein – – –

Well, Elyakim Rubinstein is something else. He is his own type.

From his early beginnings, he was involved in matters of state. He performed yeoman service for Moshe Dayan, who considered the kippa-wearing young man brilliant. After that he served Menahem Begin at Camp David 1 (the negotiations with Sadat). He was far more than just a legal adviser. Since Begin could not stand his Minister of Justice, Shmuel Tamir, he preferred Rubinstein. From then on, “Elyokim”, as his friend call him, became a central character in the many rounds of peace negotiations.

It may seem that his outstanding contribution was in the field of humor. He is brimming with Jewish jokes, dispensing them at all occasions. Not everybody shares this passion. Arab negotiators have repeatedly complained that his jokes are offensive and insulting. President Clinton is said to have found the man insufferable.

After Binyamin Netanyahu appointed him Legal Adviser, Rubinstein behaved at first with discretion. But lately his political agenda has come to the fore.

I myself can testify to this. When Gush Shalom warned that certain IDF actions might be considered war crimes and put the responsible officers at risk of legal prosecution while abroad, Sharon had a fit of rage and demanded that Gush activists be put on trial for high treason. The Legal Adviser was compelled to state that there was no legal basis for that, but he threatened to indict them for “intimidating” the officers. (Perhaps this was a kind of Jewish joke: intimidating Gush activists by accusing them of intimidating the most protected people in Israel.)

But this was a petty affair compared to the latest outbreak of Rubinstein’s activity: he has demanded that the Central Election Committee ban the election list of the Balad party, led by MK Azmi Bishara (together with the far-right hoodlum, Baruch Marzel).

This very act is without precedent. The Legal Adviser has no standing vis-a-vis the Election Committee, an independent body composed of representatives of the various political parties, headed by a judge. Everyone of its members can demand that an election list or a single candidate be banned. But the law does not accord this right to the Legal Adviser, a government appointee, because this would mean interference by the executive branch into legislative affairs.

Rubinstein contends that Bishara and his party have violated two paragraphs of a law recently adopted by the right-wing majority in the Knesset: (a) They do not recognize Israel as a “Jewish and democratic state”, and (b) they support the armed struggle of the enemies of Israel. To this end he cited secret reports of the General Security Service (also known as Shin-Bet or Shabak).

I’ve got a personal problem with that. To put it mildly: I do not believe a single word uttered by the Security Service. I do not say, God forbid, that they always lie. Sometimes they probably say the truth. But any well-informed person knows that the intelligence community and the army spokesman produce disinformation in wholesale quantities. I do not believe hired or blackmailed collaborators, nor information extracted by torture, and certainly not political analyses prepared by officials whose promotion depends on the Prime Minister.

Supporting the armed struggle of the enemies of Israel is a criminal offence, and there are many laws designed to prosecute them. However, every person (even an Arab) is held to be innocent until convicted. It should not be possible to deny his candidature before that.

(Rubinstein’s Jewish humor probably appreciates the irony: He has already started criminal proceedings against Bishara. If the Election Committee now denies Bishara the right to run for the Knesset, he will go to the High Court é and then the High Court will have to decide on Bishara’s innocence/guilt even before the lower court has heard the case.)

As to the character of the state é it is well known that Bishara wants Israel to be a “state belonging to all its citizens” (including, of course, the Arab citizens, who constitute almost 20% of the population.) One can agree with that or not (I most certainly do) but that is a legitimate issue for debate. In a democratic society, every person has the right to try to change the law by legitimate means. The Knesset exists, among other things, in order to provide an arena for such debates. When I was a member, I tried several times to initiate such discussions. It now seems that after the fall of the communist regime in the Soviet Union, Israel, China and North Korea are the last countries in the world who prohibit efforts to change the ruling ideology by legitimate means.

Rubinstein argues that Bishara does not really want a “state belonging to all its citizens”, but rather a bi-national, secular and democratic state in the whole country between the Jordan and the Mediterranean. Even it that were true, he should not be silenced. I strongly oppose this idea and consider it utterly unrealistic. But as long as he acts within the confines of the law é he should have the right to propagate it.

The whole affair has a hidden agenda. Bishara has threatened that if his list is barred from running, he will call upon the Arab citizens to boycott the elections. That makes Sharon’s mouth water: a fifth of the voters, all of them voting left, will abstain and thereby guarantee a rightist landslide.

I understand the logic of Sharon. I understand the logic of Rubinstein. I fail to understand, in this case, the logic of Bishara.