Surrealism as a form of government

Imagine a country where unelected officials could bar members of parliament from asking questions or even prevent parliament from meeting altogether. To most people, this would evoke images of totalitarian states. Yet it is precisely what two of Israel’s top legal officials sought to do last week.

The story began when State Comptroller Micha Lindenstrauss acceded to a request by Knesset State Control Committee Chairman Zevulun Orlev to brief the committee on the main findings of his seven-month inquiry into the handling of the home front during last summer’s Lebanon war. The comptroller’s final report will not be out for another few months, as he is awaiting responses from various government agencies to the 600-page draft that he completed last week. But Orlev argued that since army intelligence believes another war is possible as early as this summer, the country cannot afford to wait another few months: It must begin correcting the problems now.

The army then petitioned the High Court of Justice against the planned briefing, arguing that Lindenstrauss has no right to present his findings before the individuals and institutions he criticizes have had a chance to respond. In response, Lindenstrauss and Orlev agreed to confine the briefing to the comptroller’s factual findings about the problems and his recommendations for correcting them; no specific individuals would even be mentioned.

That seemed like a fair compromise: It would give the committee the information it needed to start addressing the problems without compromising any individual’s right to a fair hearing. But the army rejected it, demanding that Lindenstrauss be barred from giving the committee any information at all. And, incredibly, both Attorney-General Menachem Mazuz and Knesset Legal Adviser Nurit Elstein backed this position.

THEIR ARGUMENTS were surreal. Mazuz declared that while the State Comptroller Law authorizes the committee to question the comptroller about his “activities,” this should be interpreted as meaning only the procedural steps that Lindenstrauss has taken to pursue his inquiry – not his findings or recommendations. In other words, the Knesset’s right to obtain information from a senior government official is confined to procedural trivialities; it has no right to obtain the substantive information necessary to carry out its parliamentary duties.

This interpretation would gut the accountability provision of the Basic Law: The State Comptroller, which makes the comptroller “accountable only to the Knesset”: If the Knesset cannot even obtain information from him, accountability cannot exist. Far more importantly, however, depriving the Knesset of the ability to obtain substantive information about the government makes a mockery of one of the legislature’s principal roles in any democracy: overseeing the executive. That role is enshrined in two other Basic Laws – The Knesset and The Government – which broadly authorize the house or its committees to summon any minister or civil servant and obtain “information upon request” (to quote the latter).

YET IF Mazuz’s position was problematic, Elstein’s was even more outrageous. Not content with trying to restrict Knesset members’ right to ask questions in parliament, she urged the court to bar the committee from meeting altogether, lest information about Lindenstrauss’s findings accidentally slip out even during a briefing on his procedural activities.

Allowing the judiciary to bar the legislature from meeting would clearly destroy the concept of legislative independence, and the court quite properly rejected this request at last week’s hearing. But what made the request, if possible, even more outrageous was that Elstein submitted it, as she told the court, because Orlev ignored her own order that he cancel the meeting. In other words, she was seriously proposing that she, an unelected official, should have the right to decide when and on what subjects a parliamentary committee may meet, and that her decrees should be enforceable in court.

Equally galling was her dereliction of her own duty. Mazuz at least had the excuse of an unresolvable conflict of interests: Both the army and the comptroller are government agencies, so he was technically responsible for representing both – something that no private law firm with even a modicum of professional ethics would agree to do.

Elstein, however, had no such conflict of interests: Her job, as defined by law, is explicitly and solely to represent the Knesset. Indeed, the post was created precisely to eliminate the conflict of interests inherent in the former situation, in which the attorney-general represented both the executive and the legislature, even when they were at loggerheads. Yet instead of defending the State Control Committee’s right to hold meetings on an issue of vital national importance – home front defense – and obtain the information it needs to make these meetings productive, she urged the court to bar the committee from fulfilling this core legislative function. It is hard to imagine a more flagrant breach of her fiduciary duties.

While the court refused to restrict either the committee’s right to meet or its members’ right to ask questions, it is still considering restricting the comptroller’s right to answer these questions. That, of course, would produce the same result: The committee would be barred from obtaining vital information on an issue of national importance. And until the court issues its ruling, Lindenstrauss has promised to brief the panel only on his procedural activities – turning last week’s committee session into a pointless farce.

But regardless of how the court rules, the Knesset will be left with the problem of Mazuz and Elstein: namely, the fact that the government’s two top lawyers believe that their job is not to represent their “clients” – the comptroller and the Knesset, respectively – but to bar the legislature from receiving information that it needs to do its job properly. That is clearly untenable, and can only be fixed by legislation. The house must amend the relevant laws to clearly state that these officials’ job is not to dictate to their clients, but to advise and represent them. And it must specify that if either feels himself incapable of representing his client’s position, his only option is the one that legal ethics impose on private-sector lawyers: resigning his post.