The battle for hegemony

The state prosecutor has put Benjamin Netanyahu to a leadership test. Will Netanyahu decide at the next cabinet meeting that the attorney general's post will be split into two, or will he give in to the campaign conducted against him by the parallel government - that is, the legal establishment?

Since the Likud's rise to power in 1977, the legal establishment has taken upon itself governmental powers that no other legal system has anywhere in the world. If Netanyahu puts the legal establishment in its place, he would restore to the elected government some of the authority that the white knights of the law grabbed for themselves. If he hesitates, the non-elected authority (with the help of the media, which is always mobilized in its favor) will dictate to the legal government what it may or may not do, claiming that whoever disobeys is infringing on the rule of law.

The prime minister - as is his wont in matters to which the media objects - may avoid making a decision, impeding the important process of splitting the job of attorney general into the separate positions of general prosecutor and legal adviser to the government. Justice Minister Yaakov Neeman, who is spearheading the move, has always stood by Netanyahu, even when it was not in the public's best interest. But a failure to secure the prime minister's support would weaken his standing both in the Justice Ministry and in the public eye, making it difficult for Neeman to function in his position. He would certainly be deeply hurt on a personal level as well.

A look at those opposed to the split, especially the leaders of the campaign against Neeman, shows that most just barely made it into the Knesset. They are conducting an aggressive campaign as a means of maintaining the hegemony they have lost, by means of the judiciary, where they wield considerable influence.

In the past, when the split was discussed on a theoretical level, it won the support of quite a few leading jurists - academics as well as practicing lawyers. They even expressed surprise that Israel is the only democracy in which the general prosecutor is also the government's legal adviser, and intervenes in its political decisions, sometimes by fiat. These days, for some reason, those one-time supporters have fallen silent.

Until recently, the Supreme Court justices came from a pool of people with nearly identical political, ideological and even social orientation. It was headed by controlling chief justices with clear political agendas, such as Aharon Barak. The Supreme Court created a judicial-governmental entity that was unique in the extent of its intervention in the state's political affairs. And the attorneys general, who come from the same ideological-professional-political world as the court, serves as a supreme supervisor over the government's actions who operates on behalf of this entity, even if his duties were never defined as such.

Former justice minister Daniel Freidmann tried to restore to the elected government authorities that which had been taken by the judiciary, especially the Supreme Court. The left responded - as it has in Yaakov Neeman's case - by drawing the lethal, effective weapon in which both the Israeli and international left has specialized since time immemorial: personal mudslinging.

They didn't dare to slander Friedmann, but the doubt regarding the motives of this soft-spoken Israel Prize laureate permeated public awareness and obstructed a considerable part of the important reforms he came up with.

Dismissing the state prosecutor over his attack of Neeman's proposal - and as of press time, the government hasn't even done that - is not what will restore the government's authority and prestige. Only if it dares to decide that the attorney general's duties must be split will the Likud government prove that it is on its way to gaining real power, albeit more than a generation late.

If this happens the whole issue will fade away and be forgotten, and the rule of law will benefit. And Israel's judiciary will take one more step toward becoming a reasonable, sensible structure, as it is in the most enlightened of countries.