Study must precede the legal tsunami
One thing emerges clearly out of the debate over splitting the attorney general's job: Justice Minister Yaakov Neeman's concoction is not merely 'half-baked,' it seems doubtful it ever made it into the oven.
Everyone connected to the debate over splitting the attorney general's job has gone out on a limb that is not strong enough to hold them. Justice Minister Yaakov Neeman released a document last week that detailed the main points of the proposed reform, which would strip the attorney general of his powers as head of the prosecution and transfer them to a new prosecutor general. But the document conceals more than it reveals, and it was not accompanied by any lengthier report that would clarify the issue's various aspects.
The next day, State Prosecutor Moshe Lador released a letter he had sent the minister - to whom he is administratively subordinate - in which he called Neeman's plan a "false charm" and "half-baked concoction."
This letter goes into detail, but even after reading it, one would need more convincing as to why splitting the job would effectively destroy the rule of law.
Attorney General Menachem Mazuz then added supporting arguments and clarifications to Lador's letter, in a style that sought to moderate the legal tsunami. He cited the danger that an attorney general's opinions on civil or administrative matters would be given less weight if the job were split, even if these opinions continued to be binding on the government. Yet this seems doubtful because the attorney general would still have the power to decide which positions to defend in the High Court of Justice.
Neeman is due to meet with Lador this week and will apparently express his displeasure over publication of the letter, which has few parallels in the history of the battle between civil servants and politicians. Nevertheless, the justice minister will most likely bite his tongue and not demand that the cabinet fire the experienced and respected state prosecutor.
My own view, as I have written in the past, is that the idea of transferring some of the attorney general's powers to the state prosecutor, or to a new prosecutor general, is not invalid per se. Lador's claim that the proposed new format would "substantially weaken the capabilities of the state's public legal service" still requires proof. Making the attorney general responsible only for providing the government and its various agencies with legal advice and representation would not necessarily decimate his stature and power. But Neeman, for his part, still needs to demonstrate the need for the new position of "prosecutor general," a post that would be above, or instead of, the state prosecutor.
One thing emerges clearly out of this tangle of pros and cons: Neeman's concoction is not merely "half-baked," it seems doubtful it ever made it into the oven. Even the document attorney Dan Avi-Isaac prepared for then-justice minister Daniel Friedmann in July 2008, explaining the latter's proposal for splitting the attorney general's role, did a better job of detailing the principles of the new structure. Neeman's document, which was defined as a "draft for discussion and comment," does not specify in the body of the text that the attorney general's opinions will continue to be binding on the government; it does this only in the accompanying "explanatory notes," which will cease to be of any importance if a law is passed that does not make this point explicit.
Moreover, it does not state that the attorney general will no longer represent the government in High Court petitions dealing with the enforcement, or lack thereof, of criminal law. Unless that changes, the new system could result in exhausting and unnecessary fights between different governmental legal authorities.
Clearly, it is impossible to implement the proposed reform now via hasty legislation before a replacement has even been chosen for Mazuz, who is leaving in another two months. An orderly and systematic study of the reform and its ramifications is needed to create an infrastructure for the institutional and public debate on such a sensitive and important issue. The many meetings Neeman held to investigate the matter are no substitute for setting up a committee - which could be ordered to finish its work in no more than six months - to study and analyze the relevant material. It is not necessary for the committee to formulate conclusions; what matters is that there be an intelligent examination of this question, 11 years after the Shamgar Report rejected the idea of splitting the job. Before generating a legal tsunami, the whole issue must be reexamined.
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