The Fight for the Right AG

Netanyahu has done the right thing as far as the institution of attorney general is concerned - now he must follow suit when it comes to filling the post.

For once, Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak have done what they are being paid to do. There can be no doubt about it: If Tzipi Livni had won the last election, the one calling the shots in the legal system would be Haim Ramon. With Livni's backing, Ramon would have split the functions of the attorney general and neutered the position. A Livni-Ramon government would perhaps have spoken a little more clearly about a Palestinian state, but it also would have made the Jewish state one where politicians and oligarchs have their way with the law.

By jointly deciding not to divide the roles of the country's top law enforcement official between a legal adviser to the government and a prosecutor general, Netanyahu and Barak have proved that they are loyal to the rule of law. For the first time since forming their government, they can boast of making a true contribution to Israeli democracy.

This battle, however, was only the first. If the soon-to-be-named new attorney general is a lackey of Justice Minister Yaakov Neeman, the results could be grave. A powerful AG who thinks like Neeman and his predecessor Daniel Friedmann could undermine the legal system from within. He could serve as a Trojan horse and open wide the system's gates to its would-be wreckers, bringing down the walls in myriad ways. An attorney general who does Neeman's bidding (or Ramon's, or Friedmann's) would make Netanyahu go down in history as the prime minister on whose watch the legal system collapsed.

Unlike many other figures in Israeli politics, Netanyahu is fundamentally a democrat. His education in the United States taught him to respect the law and play by the rules of the game. The trouble is, he doesn't always have the courage to pay the price of defending his values. Therefore, the coming weeks will be a trial period for him as well. Netanyahu has done the right thing as far as the institution of attorney general is concerned - now he must follow suit when it comes to filling the post.

The current list of candidates is not promising. Only two or three of the 11 named by the search committee are worthy, and not one is a jurist of outstanding stature. Among this lackluster lineup, there is no new Aharon Barak or future Menachem Mazuz. The first step is therefore to reopen the list, ask Meir Shamgar and Aharon Barak, both former attorney generals and Supreme Court presidents, as well as top private lawyers, to recommend an appropriate eminent jurist for the position. Non-routine action is required to let this very sensitive selection process come up with a person with rare capabilities and impeccable integrity, a jurist head and shoulders above the rest whose professional authority and ethics are unimpeachable.

If this happens, Netanyahu will notch up a significant achievement: He will have rescued the rule of law by ensuring the selection of a strong and top-quality attorney general. When he faces the voters in the next elections, no one will be able to deny that Netanyahu has stemmed the tide of corruption. This achievement may mean that Neeman will resign, Foreign Minister Avigdor Lieberman will make threatening sounds, and various interested parties will launch an assault on the prime minister. But to cope with these challenges, Netanyahu could tie the appointment of the new AG to the establishment of a government commission to examine the problems of Israeli governance in depth.

There is an objective need for such a commission. The claim that judicial activism has rendered governments incapable of doing their job properly is not baseless. But in recent years this reasonable argument has been used as a cover-up by people out to weaken the rule of law. If Netanyahu can show the Friedmann camp that he is ready to tackle the issue of governance seriously while rejecting its abusive exploitation, his chances are good for enjoying the best of both worlds.

After years of tribal warfare between the Friedmannites and the defenders of the rule of law, perhaps the time has come for conciliation and dialogue. If Netanyahu indeed bolsters the independence of the judicial system, it will be possible to deliberate on the issue with the necessary patience and ensure that the government can govern as it should.