According to a 1993 ruling by Israel’s Supreme Court, the attorney general is under no obligation to defend the policies decided upon by the prime minister and cabinet in judicial proceedings. Nor can the government arrange for separate counsel to argue its case. But the court has recently reversed itself, allowing the science minister to represent himself in defending a policy decision of which the current attorney general does not approve. Evelyn Gordon hails this step:
[In 1993] the court . . . asserted that the attorney general’s position is the government’s position, even if the government disagrees. . . . The result of this ruling was that the government effectively lost its right to defend its policies against legal challenges. . . . This has two obviously pernicious consequences. The first is that in any disagreement between the elected government and the unelected attorney general, the latter’s view automatically prevails. Thus, instead of being the government’s lawyer, the attorney general became its ruler.
The second is that the government has been deprived of a fundamental legal right—the right to defend itself in court. Individuals, corporations, and non-governmental organizations are all entitled to defend themselves against legal challenges. Only the elected government is not. . . .
In most democracies, . . . it’s a given that the government is entitled to representation in court; and it’s a given that the attorney general isn’t the government’s master. Like any other lawyer, he’s expected either to represent his client or to resign. . . . [T]he fact that newly appointed justices are starting to rebel against the status quo is a major change. And judicial rebellion is the only remedy currently available because there’s still no parliamentary majority for codifying the necessary reforms via legislation. The legal establishment has been too successful in convincing centrists that a legal system like that of all other democracies would somehow destroy judicial independence and democracy itself.
Read more on Evelyn Gordon: http://evelyncgordon.com/after-25-years-israels-government-partially-regains-a-basic-right/