Scrutinize before splitting
The proposal to split the attorney general's powers is now being depicted as an improper attempt at a political grab, aimed at fundamentally changing the way the government is run.
The proposal to split the attorney general's powers is now being depicted as an improper attempt at a political grab, aimed at fundamentally changing the way the government is run. This isn't the first time discussion of the sensitive position has engendered such an impression; there was a similar feeling in July 2008, when the previous justice minister, Daniel Friedmann, publicized the Attorney General and General Prosecutor Bill, which attorney Dan Avi-Yitzhak had prepared in consultation with him.
The current justice minister, Yaakov Neeman, has been formulating a similar proposal for several months, and is considering the issue in his own way. Both he and his predecessor have acted in ways that contravene proper conduct in civilized countries, where public committees carry out in-depth examinations of proposals and initiatives that lead to formalizing fundamental legislative changes.
Furthermore, MK Tzipi Livni's suggestion that a special prosecutor be authorized to decide on the indictment of ministers and MKs cannot be made hastily either, especially given that the United States instituted such a position but has since gotten rid of it.
Neeman has consulted with many jurists and legal entities, but he opposes the establishment of a public committee that would examine the institution of the attorney general's office and the authority with which it is invested. The outgoing attorney general, Menachem Mazuz, will leave his post in two months, and it is worthwhile to decide on the character of the position before his successor is appointed. After all, the attorney general's skills are supposed to be an outgrowth of the nature of the post he fills.
In the present situation, the attorney general is supposed to be a noteworthy expert on civil, economic and public law, as well as criminal law. If the attorney general is no longer required to serve as head of the general prosecution as well, it will be possible to choose someone with expertise in the civil-public sphere for the post, while also appointing a general prosecutor experienced and skilled in criminal law.
The proposal to split the job of attorney general has advantages. Chief among them is that it keeps one person from wielding too much power. All the same, veteran jurists, including former Supreme Court presidents Meir Shamgar and Aharon Barak - both of whom also served as attorney general - vehemently oppose the Neeman proposal. They fear the weakening of the institution of the attorney general's office, basing their views on the Shamgar Committee report 11 years ago, which recommended maintaining the post without any changes. But though the report was adopted unanimously, it turns out there was disagreement among the five committee members, some of whom yielded to Shamgar's firm opinion.
The existing differences of opinion on this subject require a thorough examination by a public committee. Such a body would examine the extensive, relevant legal materials and assess the practical changes that have taken place since the Shamgar report was released.
The primary change that was made stemmed from an increase in the corruption of top government officials, in the wake of which the attorney general's order of priorities shifted; the AG needed to be constantly involved in the criminal side of the job, at the expense of providing legal consultation on constitutional, administrative and civil matters.
It would be best if said public committee were not comprised of former Supreme Court justices, justice ministers or attorneys general, as is usually the case, since they would have difficulty ignoring their personal experience and the views they have espoused. By contrast, leading academics from various disciplines, who are used to examining multiple approaches and opinions, will be able to examine the issue in depth, and make recommendations to the government and the Knesset.
In Britain, a historian headed a committee that examined the rules of evidence in criminal law. In this case, a new attorney general should be appointed who will operate as his predecessors did, and a public committee should meanwhile be selected, which will submit its findings and recommendations within a year.
The government should amend its August 2000 decision to set six years as the limit for the attorney general's term, shortening it to three or four years. That is a long enough period, but not too long that a change in the institution of the attorney general's office - if the committee finds that it is warranted - would be deferred for an excessive amount of time. In the meantime, the attorney general search committee, headed by former Supreme Court justice Theodor Or, should submit its candidate list to the government as soon as possible.
For its part, the Justice Ministry, which has invested a lot of time in examining the position of the attorney general, should not fear the appointment of an independent panel that will suggest a reasonable and balanced policy on so sensitive an issue - one which will have a critical impact on the rule of law.