January/February 2001
Western Wall

Attorney-General Questions Barak's Authority to Negotiate Deal

By Herb Keinon and Nina Gilbert
January, 02 2001

JERUSALEM (Janaury 2) - Attorney-General Elyakim Rubinstein, in an impassioned letter to Prime Minister Ehud Barak last week, (complete text follows this article) questioned both the premier's moral authority to engage in fateful negotiations just prior to the election, as well as the very wisdom of agreeing to the US bridging proposals under discussion.

"Formally, according to the language of the law, there are no limits on the prime minister and the government during the election period," Rubinstein wrote.

However, he added, negotiating - especially for an agreement with the Palestinians on the eve of an election - "needs to be done in such a manner that it will not raise suspicion, even for appearance's sake, that it was done because of time-dependent considerations [the election]."

Even if "heavenly angels" were conducting negotiations, Rubinstein said, "it is doubtful that, in the period of this election, considerations related to the period would not be mixed in. All the more so," he continued, "when speaking of a minority government with a prime minister who has resigned."

Rubinstein prefaced the letter, sent to Barak last week but given to the press by Rubinstein's office only yesterday, by saying that he deliberated for days whether to write it. He said it was written out of a desire for peace, much experience in negotiations, respect for Barak as prime minister and a fighter with much to his credit, and a "deep concern for the future of Israel."

Rubinstein also questioned both the willingness and ability of the Palestinians to implement and honor the prospective agreement.

"Our experience in the judicial system in legal relations with the Palestinian Authority finds an absence of any real desire to establish a real judicial system in general, or legal relations with us in particular," Rubinstein wrote. He added that the Palestinian implementation of agreements in a variety of spheres was "very partial," and in others "completely absent."

The last few months, Rubinstein wrote, have created new doubts over the PA's willingness and capability to implement agreements. "Peace is made, according to the well-known saying, with enemies - but with an enemy whom you are convinced wants peace. Can we be convinced of this?" he asked.

Rubinstein wrote that he is aware of the risks of the lack of an agreement to Israel's relations with Egypt and Jordan, as well as with the rest of the Arab world. But, he said, "there are also risks if an agreement is reached that will not be implemented."

Regarding the concessions that the US proposals call for on the Temple Mount, Rubinstein reminded the prime minister that he has a responsibility to future generations. He also said he is skeptical that the Palestinians would recognize any Jewish claim to the Mount, or that they would honor an agreement not to damage Jewish archeological remains on the site.

A source in the Prime Minister's Office responded to Rubinstein's criticism by noting that the attorney-general himself wrote that formally there is nothing wrong with the prime minister engaging in negotiations.

Likud MK Limor Livnat recently asked Rubinstein to halt Barak from negotiating, but he answered her last week that the prime minister had a legal mandate to do so. However, Rubinstein also told Livnat that he had reservations about Barak negotiating under the current conditions.

She said that Rubinstein's opinion released yesterday was "much more clear and severe." Livnat said she regretted that Rubinstein did not publish his letter five days ago, since the negotiations have progressed since then.

MK Benny Elon (National Union) is to ask Barak in a meeting today why he did not inform US President Bill Clinton and Palestinian Authority Chairman Yasser Arafat that he could not continue with the negotiations until after the election. The meeting was called to discuss legislation sponsored by Elon that would block a prime minister from signing diplomatic agreements when he does not have a 61-MK coalition.

The meeting is also to be attended by Likud MK Dan Naveh, who has a similar bill, Shinui leader Yosef Lapid, and Knesset Law Committee chairman Amnon Rubinstein (Meretz). It was organized as part of a compromise suggested by Lapid to get Barak to agree to stop the negotiations and therefore avoid passage of the far-reaching legislation.

Elon said he wondered why Rubinstein did not reveal his opinion to MKs, the Law Committee, and the entire public until now.

Justice Minister Yossi Beilin rejected Rubinstein's opinion, and said it would be "irresponsible and immoral to halt negotiations because of elections when there is an opportunity to stop the violence and bring peace."

Likud MK Silvan Shalom, who is Likud leader Ariel Sharon's campaign chief, said Barak has lost both his "moral and legal mandate" to hold negotiations.

Shalom said that if Barak wants to change his agenda and "divide Jerusalem, give away the Jordan Valley, and cede the Temple Mount, he should ask the people for a mandate to so do."

Absorption Minister Yael (Yuli) Tamir said there are some things that cannot be decided only by legality. "The continuation of the negotiations is a political question, and it would have been fitting for the attorney-general to refrain from dealing with it," Tamir said.

Likud MK Uzi Landau said Rubinstein's letter means that the person who is leading the country has "no respect for the law or democracy." Barak is running the country in the same way he ran the non-profit organizations: "against the law, with the only aim of getting in power and surviving," Landau said.

Yisrael Beiteinu leader Avigdor Lieberman praised Rubinstein for his "courageous warning" to the prime minister not to hold negotiations before the election.

©Jerusalem Post

Attorney-General Objects to Pre-Election Agreement with Palestinians

The following is IMRA's translation of the private letter sent by Attorney General Elyakim Rubenstein to Prime Minister Ehud Barak five days ago as read on Israel Radio on the 5 PM news by correspondent Michael Tuchfeld:

Prime Minister Ehud Barak:
While there is no legal limitation on a government during an election period, the legal consideration is not the central one. The instructions of the law are designed only to prevent the creation of a vacuum in authority - and not for the setting of dramatic, fateful, all-encompassing changes such as an agreement with the Palestinians.

There is a great distance between the paralysis of the government that the promulgators of the law wished to avoid, and dramatic moves.

An election-eve agreement with the Palestinians should be such that it does not raise even the suspicion that it was subject to time-related considerations - namely, election considerations. Thus, great care and constant awareness of these suspicions is required, and even more so in the case of a minority government whose prime minister has resigned.

The agreement being negotiated is different than all its predecessors. This one deals with the setting of the borders of the nation, the extent of its capital, including concessions in territory, and including, to my great sorrow, the tearing apart of the nation both by the decision and its implementation. [These are] decisions that will be difficult to withdraw from. All of these are great reasons for much care to be taken.

I raise doubt as to the moral authority of the government while the resigned prime minister awaits re-election, and when the president of the United States, who is acting as midwife for the agreement, will no longer bear any responsibility for the implementation of the agreement since his days at the White House are over - and [because] the operative meaning of the agreement will be the removal of settlements, dramatic changes in Jerusalem that cut into the very essence of the city, etc.

The government is the representative of the entire public, and thus should carefully weigh heavy nation-dividing decisions made during its waning hours. I bring to your attention the laws enacted in the Knesset protecting Jerusalem, and the law requiring a majority of 61 for changes in the borders of the sovereign territory of Israel. Such diplomatic agreements must be presented to the Knesset for approval, and considering the current parliamentary situation it can be assumed that this would not be done before the elections, but rather upon the establishment of a new government.

I also raise doubt as to the ability of the Palestinians to honor the agreement, both from a security standpoint and in terms of their willingness to maintain true legal relations with Israel.

I oppose the agreement regarding the Temple Mount. I doubt that there is room for expecting generosity from the Palestinians in their recognizing our connection to the Temple Mount.

I do not want to put barriers against the efforts for peace, but it is my obligation to say what I have said.

Elyakim Rubenstein,

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