On January 10, 1997, the cabinet chose Roni Bar-On, then a member of the Likud Central Committee, to be the next attorney general. The appointment was listed on the meeting's agenda under "miscellaneous." It was concocted in smoke-filled rooms and concealed from the public's eye. Two days later, justice minister Tzachi Hanegbi announced the new attorney general's resignation on a live television broadcast.
The lessons learned from this hasty appointment led to the establishment of a committee headed by former Supreme Court president Meir Shamgar to consider the attorney general's role. This panel recommended that a law be enacted to regulate the process of choosing the attorney general. Instead, the government made do with a cabinet decision on the issue, adopted in August 2000. In any case, the decision was in line with the principles advocated by the Shamgar Committee.
Now, a search committee headed by former Supreme Court justice Theodor Or is about to convene to choose a new attorney general, as incumbent Menachem Mazuz is retiring in January, six years after taking office.
The new attorney general must have expertise in both public and criminal law; this is clear both from the cabinet decision's statement that the universities' representative on the search committee must have such expertise and from the decision's reference to the Shamgar Committee's conclusions about the attorney general's qualifications. He must also have broad experience, both formal and substantive, that gives him a professional background equal to that demanded of a Supreme Court justice.
But in the current situation - given Justice Minister Yaakov Neeman's intention of splitting the attorney general's role by transferring his power to file criminal charges to the state prosecutor or some kind of "super prosecutor" - the committee should refrain from recommending candidates to the cabinet before the nature of the job is clear.
If the justice minister succeeds in carrying out this reform, which requires legislation, the attorney general's job will consist mainly of civil, economic and commercial issues, along with representing the state in the High Court of Justice - except in the case of petitions against decisions not to indict someone, usually a public figure. Those decisions would be defended in the High Court by the state prosecutor or the "super prosecutor."
The search committee can begin vetting the candidates its members have proposed immediately, with the understanding that only a candidate with significant support is worthy of having his name passed on to the cabinet by the committee. But the committee's final decision on which candidates to recommend to the cabinet requires that four of its five members deem him "qualified, suitable and appropriate." And this final determination cannot be made before knowing whether changes will be made to the attorney general's role.
The last search committee, headed by former Supreme Court justice Gavriel Bach, submitted three names to the cabinet: then-district court judge Uzi Vogelman, who was appointed to the Supreme Court last week; District Court Judge David Cheshin, who has experience in a wide range of legal fields and has been mentioned as a possible candidate this time around as well; and Mazuz. That committee gave great weight to the fact that then-justice minister Yosef Lapid favored Mazuz, and ultimately, so did the cabinet.
Neeman, the current justice minister, has done well by refraining (at least so far) from recommending any particular candidate to the committee. His restraint gives the committee even greater freedom to apply its best judgment. Prime Minister Benjamin Netanyahu, who was also premier when Bar-On was appointed, has also refrained from submitting candidates to the committee, as indeed he should, even though the cabinet decision of 2000 authorizes him to do so.
To ensure the appointment of the most suitable candidate to one of the government's most important posts, the justice minister must finalize his position on the thorny question of the attorney general's powers - an issue he has been studying for several months now. It is also possible to appoint an acting attorney general to replace the outgoing incumbent for three months, or even to extend that term via a cabinet decision. That would be preferable to making decisions on either of the two relevant questions - whether to split the attorney general's role and who the next attorney general should be - without weighing all the relevant factors.
The former question is extremely controversial. Thus a new public committee, which would not necessarily be composed of former justice ministers and attorneys general and could make use of the enormous amount of material that has since been amassed, ought to reexamine the Shamgar Committee's recommendation not to split the job. Appointing an acting attorney general would be preferable to a hasty choice. And it is reasonable to assume that Or and his colleagues on the committee will not lend their hands to an ill-considered move.
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