The “Legal Advisor to the Government” is a curious animal. Lately, his activities have becomecurious, too.
Like the mythological Centaur, who was half human, half horse, the office of the Legal Advisorcomprises two different parts. On the one side is the person indicated by his title, givinglegal advice to the government. The government is, of course, a political body. It is composedof politicians. When the government appoints its legal adviser, it chooses a person who suitsits outlook and opinions.
On the other hand, the Advisor is also the highest law-enforcement officer in the land. Assuch, he has immense power. He holds the fate of many people in his hands, decides who will beindicted and who not, who investigated and who not. In this capacity he is supposed to becompletely independent, devoid of any political and party leanings. Neither the governmentnor 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 ofpoliticians called “government” cannot be independent. An independent-minded personcannot satisfy the government. Therefore, it has been suggested to separate the twofunctions, so that the government would go on appointing its Legal Advisor, while theAttorney General would be appointed by the President of the Supreme Court or an independentcommittee. These proposals were rejected, because all governments preferred the statusquo.
Each Legal Adviser up to now has tried to solve the problem in his own way. When the late HaimCohen held this office in the 50s (before being appointed Supreme Court justice), he wascompletely subservient to David Ben-Gurion, the then Prime Minister. Meir Shamgar, AharonBarak and Yitzhaq Zamir, on the other hand, jealously guarded their independence and actedwith 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 servicefor Moshe Dayan, who considered the kippa-wearing young man brilliant. After that he servedMenahem Begin at Camp David 1 (the negotiations with Sadat). He was far more than just a legaladviser. Since Begin could not stand his Minister of Justice, Shmuel Tamir, he preferredRubinstein. From then on, “Elyokim”, as his friend call him, became a central character in themany rounds of peace negotiations.
It may seem that his outstanding contribution was in the field of humor. He is brimming withJewish jokes, dispensing them at all occasions. Not everybody shares this passion. Arabnegotiators 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 withdiscretion. 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 beconsidered war crimes and put the responsible officers at risk of legal prosecution whileabroad, Sharon had a fit of rage and demanded that Gush activists be put on trial for hightreason. The Legal Adviser was compelled to state that there was no legal basis for that, but hethreatened to indict them for “intimidating” the officers. (Perhaps this was a kind of Jewishjoke: intimidating Gush activists by accusing them of intimidating the most protectedpeople in Israel.)
But this was a petty affair compared to the latest outbreak of Rubinstein’s activity: he hasdemanded that the Central Election Committee ban the election list of the Balad party, led byMK 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 ElectionCommittee, an independent body composed of representatives of the various politicalparties, headed by a judge. Everyone of its members can demand that an election list or a singlecandidate be banned. But the law does not accord this right to the Legal Adviser, a governmentappointee, because this would mean interference by the executive branch into legislativeaffairs.
Rubinstein contends that Bishara and his party have violated two paragraphs of a law recentlyadopted 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 ofIsrael. To this end he cited secret reports of the General Security Service (also known asShin-Bet or Shabak).
I’ve got a personal problem with that. To put it mildly: I do not believe a single word uttered bythe Security Service. I do not say, God forbid, that they always lie. Sometimes they probablysay the truth. But any well-informed person knows that the intelligence community and thearmy spokesman produce disinformation in wholesale quantities. I do not believe hired orblackmailed collaborators, nor information extracted by torture, and certainly notpolitical 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 aremany laws designed to prosecute them. However, every person (even an Arab) is held to beinnocent 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 criminalproceedings against Bishara. If the Election Committee now denies Bishara the right to runfor the Knesset, he will go to the High Court – and then the High Court will have to decide onBishara’s innocence/guilt even before the lower court has heard the case.)
As to the character of the state – it is well known that Bishara wants Israel to be a “statebelonging to all its citizens” (including, of course, the Arab citizens, who constitutealmost 20% of the population.) One can agree with that or not (I most certainly do) but that is alegitimate issue for debate. In a democratic society, every person has the right to try tochange the law by legitimate means. The Knesset exists, among other things, in order toprovide an arena for such debates. When I was a member, I tried several times to initiate suchdiscussions. 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 tochange 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 theJordan and the Mediterranean. Even it that were true, he should not be silenced. I stronglyoppose this idea and consider it utterly unrealistic. But as long as he acts within theconfines of the law – he should have the right to propagate it.
The whole affair has a hidden agenda. Bishara has threatened that if his list is barred fromrunning, he will call upon the Arab citizens to boycott the elections. That makes Sharon’smouth water: a fifth of the voters, all of them voting left, will abstain and thereby guaranteea 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.