Preserve the attorney general's role

Justice Minister Yaakov Neeman's proposal to deprive the attorney general of the jurisdiction to act as head of the state prosecution is unbecoming. The problem is not, as many believe, the "perfunctory" manner in which the idea was formulated, or the fact that the proper homework was not done to prepare for such a far-reaching step. On the contrary, one is overcome with the suspicion that the plan was thoroughly weighed right down to the last detail, and that it found favor with its advocates precisely because of its sinister content.

There are countries like the United States in which the principles of the rule of law, including fundamental human rights, are anchored in a written constitution that is regarded by a cross section of the public, both right and left, as a sacrosanct document (even if at times it is interpreted in various, contradictory ways). There are other countries like Britain which do not have a constitution, though they do boast a democratic tradition that is nurtured and guarded to a point that ensures the existence of the rule of law and human rights despite the absence of a constitution.

Israel is unlike either of the aforementioned countries. On the one hand, it possesses nothing but a tiny fragment of a constitution (in the form of two Basic Laws), from which a significant chunk of human rights were knowingly excised. Despite its truncated nature, many consider it a historic accident that happened by chance or fraudulently. On the other hand, our country does not have a noted tradition of democracy, perhaps because most of the people who have settled in Zion were originally from a diaspora that encompasses Eastern Europe and the Middle East, places where human rights and the rule of law were not a part of the cultural tradition.

Without a real constitution and given that we have a democracy as fragile as it is, the principles of the rule of law and human rights are on shaky ground, for we have no guarantee that these principles will not be swept away in a wave of engulfing nihilism.

Our judicial history has proven that we have two main instruments that are relied upon in order to somewhat lessen the risk factors mentioned above. They provide a sliver of hope that the rule of law and human rights can be preserved. These are the Supreme Court and the attorney general. Much has already been written of the attempts to mar the constitutional underpinnings of the former. That same malevolent spirit is now seeking to curtail the functions of the attorney general.

The job of the attorney general in Israel is a unique concept in comparative law. The attorney general is not a consigliere for the Benizris, the Hirchsons and their ilk - the rich and powerful. Rather, it is a job that requires him or her to be an attack dog who carefully scrutinizes the government's actions, the rule of law and human rights, issues that are of little concern to the powers that be.

In the days when our most renowned attorneys general were in office, in line with the tradition pioneered by Meir Shamgar, the rule by which all government agencies and bodies must accept the attorney general's recommendations on legal matters was engrained and adopted. Woe be unto us in the event that the government did as it pleased without a seal of legal approval with which it is bestowed, like a precious gift, by virtue of the job done by the attorney general.

The fact that the attorney general is also the head of the state prosecution is what gives the watchdog its teeth. Removing that function from his jurisdiction and granting it to another official is akin to denying the watchdog the ability to bite those who act waywardly and, by extension, denying the government and the voters who entrusted that government to preserve the principles of the rule of law and human rights.

What are these principles? They are known to all: equality before the law for everyone, irrespective of nationality, religion, political views, skin color or sexual preference; distance between the government and one's private matters; preserving the right to live a lifestyle that conforms to law; freedom of debate, political expression and property acquisition.

While these principles may be cherished by some of us, they are a nuisance for others. Thus, why shouldn't those others object to the equal application of the law to both Jews and Arabs? Why shouldn't they object to equality before the law for men and women, heterosexuals and homosexuals, those who support the government and those who oppose it, our enemies who violate the law and do us harm in the process as well as those who violate the law to do our enemies harm, the affluent and the common man?

Weakening the attorney general post while encroaching on the authority of the Supreme Court is a calculated, carefully considered way to undermine the principles of the rule of law and transform it into something else entirely.

The writer is a professor of law at the Interdisciplinary Center in Herzliya and a former dean at the Faculty of Law at the Hebrew University of Jerusalem.