2 days ago
The case of Israel's attorney-general: Why the role exists - and should it be changed?
LEGAL AFFAIRS: Experts weigh in on the importance of the role of the attorney general in the Israeli legal system, and debate Gali Baharav-Miara's interpretation of the role.
The debate on the purpose, role, and power of the attorney-general is not new, as it morphed over the years, and now appears at the heart of the debate over rule of law and governance.
This fundamental debate crops up in near-daily verbal jabs from politicians and advisory opinions from the Attorney-General's Office, but what lies at its base, and is it bridgeable?
The role of the attorney-general is multifaceted and unique: They head the state prosecution; represent the state in procedures, High Court hearings, and more; and they are the [chief] legal adviser to the government, considered its authorized interpreter of the law.
As long as a court doesn't stipulate otherwise, their interpretation is the one the government seeks, and is considered reflective of the law.
Last week, Attorney-General Gali Baharav-Miara and her office issued a sharply critical advisory opinion on a government decision to change the traditional firing process of the attorney-general. According to the decision, all that is required is for the justice minister to present the request to fire the A-G to a committee of government ministers only, and then to bring it to a parliamentary vote. The criticism levied against the decision is that it politicizes something it shouldn't, leaving it solely in the hands of parliamentarians, and that it was passed simply because the government failed to dismiss Baharav-Miara in the traditional, accepted manner.
The term of every attorney-general is for six years. To hire or fire the A-G, an external public-professional committee must convene and provide an expert opinion – before any government decision is made.
The committee includes a retired Supreme Court justice as chairman or chairwoman, appointed by the Supreme Court president and by approval of the justice minister; a former justice minister or attorney-general, chosen by the government; an MK, chosen by the Knesset's Constitution, Law and Justice Committee; a lawyer, chosen by the Israel Bar Association; and a legal academic, selected by the deans of the law faculties.
If the government wishes to end the term early, it has to meet specific conditions, such as if there are consistent and severe disagreements between the A-G and the government, rendering their working relationship unproductive.
If this is the case, the justice minister must submit a request to the committee. It then holds a meeting, during which the A-G can present their side. The committee then submits its recommendations.
The challenge today is that Justice Minister Yariv Levin has not succeeded in filling out the committee's positions.
Before the year 2000, the hiring and firing of the attorney-general was much more restrained, to be within the framework of the government, and the candidates were all qualified to be Supreme Court justices, ensuring their qualifications. What shifted and created the committee was the Bar-On-Hebron affair.
In January 1997, lawyer Roni Bar-On was appointed attorney-general by Prime Minister Benjamin Netanyahu. He was not qualified for the position, and resigned two days later after public and political outrage.
About a week later, it was revealed that his appointment was part of a deal between Netanyahu and Shas head Arye Deri, who was then internal security minister, to advance a plea bargain in Deri's corruption case. Deri pushed for the appointment in exchange for his party's support of the controversial Hebron Agreement for the withdrawal of Israeli military forces from some parts of the city.
Deri was later indicted after a police investigation resulted in charges, and as a result he was barred from politics for a decade.
The Shamgar Commission was then created to establish the criteria for the public-professional committee that would ensure such a scenario would not again unfold. The protocol was changed in 2000.
Dr. Guy Lurie, a research fellow at the Israel Democracy Institute and a former coordinator of the Shamgar Commission, explained to The Jerusalem Post that the commission's assumption 'was that this process would... block the government from dismissing an attorney-general just for standing on her legal advice.' This person would be able to 'give advice and not be afraid to be sacked.'
Lurie explained that the 'mechanism was based on a public commission that heard advice' from many experts. 'If the government wants to change that, it needs to at least think about it with the factual grounds that base that decision. Particularly, it seems like the government decided to change the mechanism with disregard [for] the principles governing the role of the A-G that the Shamgar Commission detailed in its report.'
That very decision, led by Levin, was passed in June, and proposes to do away with the committee and have the question of dismissal instead rest with a committee of ministers. The decision has faced sharp criticism for what is seen as politicizing one of the last legs of checks and balances on the government, and as illegitimate since Levin already began the process to call up the committee, but failed to fill its positions.
'He's trying to fix the mess that he's made by simply throwing the baby out with the bathwater,' claimed Lurie. When he couldn't fill the positions of the committee, Levin 'instead said, 'We'll just receive advice from ourselves'; that's completely irrelevant to the point of getting advice.'
The Israeli legal system is a unique cocktail of English Common Law (from the British Mandate period), Ottoman law, Halacha (Jewish law), and civil law. While it has shifted and grown over time, it kept some central tenets of Common Law, including the notion of precedent, which is that courts follow rulings of previous court decisions to guide legal interpretation, along with legal procedures across the field.
The position of an attorney-general is one of those passed on from Common Law, explained Lurie.
Uniquely, in Israel the A-G's responsibilities are under one umbrella, as opposed to being split into different offices. Here, the A-G is the chief legal adviser to the government, they head the public prosecution, and they also represent the state.
In Israel and outside of it, the attorney-general is seen as the iron wall stationed to safeguard the government's integrity, individual rights, and democratic principles as a whole.
In the UK, for example, Lurie explained, the attorney-general is a political appointment, while in Israel, 'it's become a public service role... and its function in Israel is particularly important... because of the lack of other effective checks and balances that other democracies usually have.' This is 'the great challenge that Israel has in terms of preserving the rule of law.'
The argument for why such a strong check is needed on the government stems from the fact that, in Israel, the legislative and executive branches are not truly split.
The parliament (Knesset), the legislative branch, has 120 permanent members elected by proportional representation, while the government, the executive branch, is composed of ministers. In Israel, all ministers – including the premier – are typically also MKs; members of the executive branch are also part of the legislature, and the executive constantly depends on Knesset support to manifest its policies.
Scholars in this school of thought, therefore, see a need for a strong judiciary. The government, Lurie explained, needs this internal power check in the form of the attorney-general and the legal advisory.
Currently, it is mostly the judiciary that acts as a check on the government's power, along with the attorney-general. The Knesset doesn't usually act as a check on power of the government.
The A-G is there to 'help the government fulfill its duties and care for its policies in a legal manner, and to prevent violations of the law,' said Lurie.
He continued, 'On one hand, she needs to advise the government and help it to realize its policies. And on the other hand, because the government is not a regular client, and the attorney-general is not a regular attorney, she has high commitment as to the rule of law – and not to the government. She is committed to the government, [but] if there's a [legal] conflict, then her higher duty is to help the government to not break the law.'
Attorney Aharon Garber, the deputy director of the law department at the Kohelet Policy Forum, told the Post that the attorney-general in Israel is one of the most influential and unusual legal roles in any democracy – 'exceptional in every sense of the word.'
He explained that what has happened over the past few decades is that the A-G shifted from 'working for the government' in representation to leaning more heavily into the role of an independent figure, whose de facto stance became to block the government from manifesting its policies – rather than aiding it.
Garber's position asserts that the intended goal of this role, and how it manifests in reality today are very different things. The reach of the legal system has been expanded so far that it today includes elements beyond what is legal (though they are enshrined in law), like the reasonableness standard, for example. This position asserts, therefore, that the place to settle legal interpretation in cases where the advisory and the government clash is the courts.
'The question is: Is the A-G in an advisory capacity, or a decisive one? That is at the heart of the debate,' he said.
Lurie's position argues that viewing the A-G as restrictive is 'inaccurate when you look at the grounds for the previous decision to declare mistrust of the attorney-general by the government – all the cases were simply where the A-G gave an interpretation of the law, and the government simply tried to [advance] against [that] advice about illegal actions that the government wanted to do.
'[The view that the A-G acts beyond her limits] is something that a lot of people think, whether it is accurate or not,' he said.
In the dozen or so cases where the position of the legal advisory was opposed to the government, he explained, Baharav-Miara allowed separate representation, he explained, and in the end, the court mostly aligned with the A-G's position.
'This is exactly the [kind of] case where the Shamgar Commission recommended that the dismissal mechanism needs to prevent the government from dismissing an attorney-general who is, in good faith, simply giving advice on the law and the way that she thinks the law stands.'
Six months ago, in a debate hosted at the Hebrew University of Jerusalem by the Israel Law and Liberty Forum, attorney Gil Bringer, who served as an adviser to several ministers, including Ayelet Shaked when she was justice minister, narrowed the debate down: It is not about whether the legal advisory and the Attorney-General's Office should exist, or whether the people working there are honest.
Rather, it is strictly about when there arises a disagreement about interpretation, does the A-G have the final word as the ultimate interpreter of the law?
In his view, the answer is no; that authority lies with the judges and the courts.
'We already have a sound legal system – why do we need another one? Let the courts judge. This is between different – yet equal – interpretations of the law,' said Bringer.
Garber summarized this position: 'You already have someone telling the government what is okay and what isn't – the courts. The legal advisory is there to advise.'
The flagship example for this approach – though there are more – is from about eight months ago. Dr. Odelia Minnes was appointed by Communications Minister Shlomo Karhi to be the temporary head of the Second Authority for Television and Radio, the authority that regulates and supervises commercial broadcasts to ensure that a specific percentage of them is locally produced.
At the time, the ministry's legal adviser rejected Minnes's appointment, saying that it was illegal and there is no way to advance the appointment.
Petitions against her appointment were rejected, and Minnes got the role. Supreme Court Justice Noam Sohlberg at the time criticized the legal advisory, writing that the interpretation of the illegality of Minnes's appointment is 'far' from being true.
This is one case, but it demonstrates that the legal advisory, at times, blocks legislation that needn't be blocked.
The response to this is that there aren't many cases like Minnes's, that it doesn't reflect the whole operation, and that the position of the advisory as a safeguard of the rule of law is true and correct. The obligations of the legal advisory are to the state, to the rule of law, not to a specific government or any specific policy.
If the legal advisory wouldn't exist as it currently does, this position argues, there would be no professional authority on the ground in real time when policy decisions occur. What would presumably happen is that every decision would wind up in court, which is both a waste of time and taxes, as well as an abuse of the service itself.
The ministerial committee on changing the process is set to convene on Monday. Beyond the drama and the headlines that are sure to emerge from the meeting, the two sides of this debate will – probably – face each other again.
