Is Israel’s Attorney General Like

the Biblical Prophet Samuel?

By Uri Shtruzhman*

The authority to crown kings emerges on the Jewish people’s national agenda during the period of the Judges, when “there was no king in Israel and each man did as he saw fit.” When the people realized that the method of appointing “judges,” as local rulers were then termed, failed to provide leaders of integrity and they decided to change the system of government that had ruled them for 400 years, they faced a constitutional vacuum. The constitution of Moses did not specify how the system of government could be changed.

The elders and the leaders of the tribes convened to consider the matter. The consensus was that monarchy was the desired form of government, but there was no consensus on a candidate for the crown. Lacking any other alternative, the assembly decided to empower a consensual figure, divinely inspired and of unimpeachable integrity, to choose a king: the prophet Samuel. The assembly requested of Samuel, “Choose us a king to judge us” (I Samuel, Ch. VIII). Upon receiving his commission from the elders, Samuel consulted the L-rd and anointed Saul to be King of Israel.

The question of the authority to select a Prime Minister is of relevance today. The people desire a change of leaders, and the Prime Minister, consenting, has given notice of his intention to resign as soon as his successor is chosen in primary elections within his party. So far so good, as far as existing constitutional arrangements are concerned. The public interest in the Prime Minister’s early departure and his replacement with someone else, even temporarily, however, has spurred some to comb the statute book for some way to shove the current incumbent out of the Prime Minister’s office with more than deliberate speed. Interested parties quickly discovered Article 16(b) of Israel’s Basic Law: The Government, which reads: “Should the Prime Minister be temporarily unable to discharge his duties, his place will be filled by the Deputy Prime Minister.”[1] Alas, the law does not state who is to decide that the Prime Minister is no longer competent to discharge his duties and must be replaced. When former Prime Minister Sharon suffered a stroke and was manifestly incapable of functioning, no special decision was necessary to determine that his Deputy could step into his place. In this case the law placed no a priori burden on the Attorney General to find that the Prime Minister was nonfunctional and should be replaced.

What if there should be a Prime Minister who comes to the office every day and is convinced that he can carry out his duties, but others around him think that he suffers

from a psychiatric disorder or has lost his powers of quick and coherent decisionmaking? The law does not provide who is to declare him incompetent, or even who has the power to force him to undergo medical tests. The Attorney General has no legal authority to do so. If the Elders of the People—in our day, the Knesset—cannot agree on the necessity of deposing the Prime Minister, nobody has the authority simply to take his place. In this matter Israel faces a constitutional vacuum, as in the days of the Judges.

Characteristically, Israel’s Supreme Court has rushed into this vacuum. Recently, in a case that has nothing to do with finding the Prime Minister incompetent to carry on, almost as an aside, the Court endowed the Attorney General with the authority which escaped the Elders of the People 3000 years ago, that of appointing and removing Prime Ministers.

Yoav Yitzhak, a journalist, appealed to the High Court of Justice (the Supreme Court) against the Prime Minister (HCJ 6231/08), seeking to have the court direct the Attorney General to declare the Prime Minister incompetent to serve, so as to remove him from office and force him to give his full time and attention to the police investigators interrogating him about his many alleged improprieties. Yitzhak’s suit assumes the Attorney General possesses the power in question. The court, instead of pointing out that the Attorney General possesses no such authority and instructing the police to treat the Prime Minister like any other suspect who effectively chooses to remain silent, tried to make good the constitutional vacuum regarding the power to determine that a Prime Minister must step down.

In what appears to be a superfluous comment immaterial to the case at hand, the Court speculated:

We are prepared to assume that the Attorney General is correct in his claim that the directive [Art. 16(b) of the Basic Law: The Government—U.S.] regarding the Prime Minister’s temporary incapacity is not limited to questions of health, but that incapacity can arise for many reasons, including criminal investigations. We also assume, without making a determination in the matter, that the Attorney General is empowered in appropriate cases to declare the Prime Minister temporarily incapacitated, as happened when Prime Minister Sharon’s health suddenly deteriorated . . . Even so, clearly such a declaration on the grounds of criminal investigations of the Prime Minister are extremely exceptional . . . if it becomes clear that the conduct of the Prime Minister does not permit the appropriate pursuit of investigations against him, it may be appropriate for the Attorney General to declare him temporarily removed from office.

Thus, indirectly, in an aside, as it were, a Talmudic discussion, by imparting legal significance to the declaration of the Attorney General in the Sharon case rather than interpreting it appropriately as simply recognizing objective circumstances which permitted Sharon’s deputy to take his place, the Court placed a whip in the Attorney General’s hand: The ability to threaten, and if necessary to punish, an elected Prime Minister with removal if he fails to devote the time the Attorney General considers appropriate for a criminal investigation.[2]

I have no idea whence the Court derived this authority it vests in the Attorney General. What is the Attorney General to do before declaring the Prime Minister temporarily removed from office? Will he summon the Prime Minister to a hearing and examine his appointment book? Will he interrogate the police to learn if the

hours it requires for the Prime Minister’s interrogation are really necessary? If the Attorney General suspects that some future Prime Minister is physically unfit, will he force the Prime Minister to undergo a physical examination in violation of the Rights of the Ill Act and send him under police escort to the doctor?

The judgment of the court, given as an aside in a suit meant to admonish the Prime Minister to cooperate with the police, creates a power in the Attorney General that has no basis in the law. The judgment is a serious error, antidemocratic in nature. Tomorrow an Attorney General might declare a Prime Minister temporarily unfit for office because the latter adopts a policy of returning the Golan to Syria. Why not? The Supreme Court has vested the Attorney General with the necessary authority, and in his judgment perhaps the desire to return the Golan is prima facie evidence of an unbalanced mind. No need to consult any due process of law in determining the Prime Minister’s incapacity. The power to crown and depose kings has been vested in the Attorney General by the Supreme Court.

Samuel in his generation received from the assembled elders of Israel the authority to appoint a King. In our day the Supreme Court has appropriated this power to itself. Samuel took counsel with the Master of the Universe. Whom will the Attorney General consult if and when the time comes?

* Judge Uri Shtruzman (ret.), formerly of Tel Aviv District Court, is a senior research fellow at the Center for Zionist Strategies. The Hebrew version of this article appeared on the Israeli website “Mar’ah” (Mirror), www.maraah-magazine.co.il. Translated and distributed by permission.

[1] “Deputy” is a more accurate translation of the original Hebrew text than “Acting.” The Prime Minister generally appoints a deputy from among the cabinet, who becomes Acting Prime Minister if the Prime Minister cannot function or is temporarily away from the country.

[2] The reader should note that the Attorney General possesses the sole power by law to indict or to direct an investigation of the Prime Minister. This court opinion gives him the power to remove the Prime Minister in consequence of an investigation, even one that has reached no conclusion and may result in no indictment.