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The Case of the Attorney General It Is Time to Restore the Government’S Authority to Appoint an Attorney General of Its Choosing

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The Case of the Attorney General It Is Time to Restore the Government’S Authority to Appoint an Attorney General of Its Choosing Commentary Daniel Friedmann The case of the attorney general It is time to restore the government’s authority to appoint an attorney general of its choosing THE APPOINTMENT of a new attorney However, the commission’s conclusions Supreme Court ruling in 1993 in favor of general has again highlighted the short- were the precise opposite of those ascribed a petition that Shas cabinet minister Arye comings of the selection process for one of to it by Barak. It determined that in his role Deri and deputy minister Rafael Pinchasi the most powerful positions in the Israeli as chief prosecutor the AG is indeed totally should be fired because of criminal charges system. It has also raised questions about independent; but when it comes to advising against them. But because the AG backed the AG’s powers. the government, the government is free to the petitioners’ position, prime minister The office of attorney general in Israel act according to its discretion, even if con- Yitzhak Rabin, who opposed it, had no is unique with regard to the scope of the trary to the AG’s opinion. right to argue in court against the dismiss- authority invested in an unelected official. als. This led to severe criticism of a state The AG heads the state prosecution and is The government and of affairs in which the prime minister did also the government’s legal adviser – ad- not have the right to his day in court and vice, which during Israel’s “judicial rev- the prime minister the AG could effectively shut him up. This olution” received dramatic and binding himself have no right anomaly, however, is still in force. significance. The appointment of the AG is within The judicial revolution began in the to independent legal the government’s purview, but this was 1980s and during its course the power of modified in 1997 after the so-called “Bar- the judiciary grew enormously at the ex- representation and the On-Hebron” affair, during Benjamin Net- pense of both the executive and the legis- anyahu’s first term as prime minister. The lature. The Supreme Court ruled that it had AG can gag them government’s appointment of lawyer Roni the authority to abrogate Knesset legisla- Bar-On, a Likud activist, as attorney gen- tion, that virtually everything is justiciable, That had been the norm for many years. eral caused a scandal. Bar-On resigned and that government decisions can be ruled null But Barak overrode that, introducing a shortly thereafter a criminal investigation and void on the grounds of “unreasonable- new modus operandi under which the AG’s was launched against Netanyahu, justice ness” and that every person has the right to opinion is binding. And since almost ev- minister Tzachi Hanegbi and others on petition the High Court of Justice against erything in Israel is justiciable, the AG has suspicion that Shas wanted an AG amena- the governing authorities, even if he or she the power to revoke any executive decision ble to its leader Deri accused of corruption, has no legal standing in the matter at hand. or appointment, if, in his opinion, the deci- and that the appointment was a quid pro The upshot is that every government de- sion or appointment is “unreasonable.” In quo for Shas support for IDF redeployment cision is subject to appeal, including every this way the AG became the government’s in Hebron. appointment in the civil service, which can commanding officer. All the cases were closed. be revoked if considered “unreasonable.” Barak also introduced another rule by While the investigations were still A central component of the judicial rev- which the AG has the sole authority to rep- ongoing, the government decided to olution was a substantial increase in the at- resent the government in court, but that, at appoint a commission headed by former torney general’s power. In 1993, Supreme the same time, he can take a position con- chief justice Meir Shamgar to consider Court Justice Aharon Barak ruled that the trary to the government’s. In other words, the question of the attorney general. The AG’s opinion binds the government. In do- the government and the prime minister government accepted its recommendation ing so, he relied on the report of the 1962 himself have no right to independent legal that a search committee recommend Agranat Commission set up to define the representation, and the AG can gag them. a candidate. The committee would be AG’s powers. The issue in question at the time was the headed by a retired supreme court justice 6 THE JERUSALEM REPORT JANUARY 25, 2015 REUTERS appointed by the incumbent chief justice; government decided to appoint Yehuda secretary. He alone got four votes, but not other members would be a former justice Weinstein. And although Weinstein had that of chairman Grunis, who thought that minister or attorney general appointed by not received the requisite four votes, a peti- there was a need for a cooling-off period the government, a member of the Knesset’s tion to the High Court of Justice against the between the positions of cabinet secre- Constitution, Law and Justice Committee, appointment was rejected. tary, serving the government and working a member of the Bar Association and an The search committee was conceived closely with the prime minister, and attor- academic. Candidates would have to be as a professional and objective body. But ney general, who might be called upon to approved by at least four of the committee’s its failure stemmed from the fact that its prosecute any one of its members, includ- five members. members represented contradictory inter- ing the prime minister. During my term as justice minister ests and ideologies. For example, as far as In these circumstances, in which the (2007-2009), to give the government a de- the Supreme Court is concerned, the AG committee failed to fulfil its mandate, the gree of choice, I instituted an amendment should be its representative in the execu- government, in my view, would have been mandating the committee to put forward tive branch and prevent any moves that free to disregard its recommendation and three candidates for the government to might curb the wide powers it has arrogat- choose any suitable candidate it saw fit. choose from. ed to itself; as for the government, it wants Nevertheless, there is no problem with an AG who helps it advance its policies and the fact that they went ahead and apointed TOWARD THE end of attorney general not someone who might launch a campaign Mandelbit, although he will have to recuse Meni Mazuz’s term in 2010, the commit- of investigations against its members. himself from dealing with personal issues tee convened under the chairmanship of Indeed, the search committee’s failure relating to the prime minister or other com- former Supreme Court Justice Theodor proves the naïveté of the Shamgar Com- plaints made against him. Orr. The process ended in fiasco. Two of mission’s working assumption that the As expected, even before the appoint- the committee members, former Likud appointment of people to high office is ment was approved a petition was lodged justice minister Moshe Nissim and Likud merely a question of professional and ob- against it in the High Court of Justice. It Knesset Member Yariv Levin, proposed jective considerations. Indeed, it is naïve was rejected as “premature” but may well the candidacy of lawyer Yehuda Weinstein to assume that the law is somehow “ob- be submitted again now that the appoint- and judge Noam Solberg, a brilliant jurist jective,” immune to competing interests ment has been formally approved . and today a member of the Supreme Court, and ideologies, especially in Israel, where Bottom line: The repeated failure of who is also an observant Jew living in a almost everything is justiciable and attor- the search committees dealing with the West Bank settlement. neys in public service have wide discre- appointment of an attorney general shows Obviously, both candidacies were rea- tionary powers on questions of morality that the time has come to do away with sonable as far as their professional qual- and reasonableness. them. It is time to restore the government’s ifications were concerned and suited to The farcical parade continued in the authority to appoint an attorney general of Netanyahu’s right-wing government. But search committee under former chief jus- its choosing without the Supreme Court they did not satisfy Orr or the academic tice Asher Grunis, which was appoint- and other bodies trying to dictate the representative, Prof. Eyal Benvenisti, who ed recently to recommend a successor to outcome. proposed other candidates. Attempts to Yehuda Weinstein. The committee failed reach a compromise failed, and no candi- to recommend the mandated three candi- Daniel Friedmann, law professor emeritus date received the mandatory four out of dates, managing to put forward only one, at Tel Aviv University, was minister of five committee votes. Nevertheless, the Avichai Mandelblit, the current cabinet justice f rom 2007-2009 THE JERUSALEM REPORT JANUARY 25, 2016 7.
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