A Separate Adviser and a Separate Prosecutor

As Attorney General Menachem Mazuz's eventful term is nearing its end, the important role played by the attorney general makes it imperative to reassess the attorney general position, examining all aspects of the rule of law and justice.

The legal year opened this week with the trial of former president Moshe Katsav, and the incarceration of former finance minister Avraham Hirchson and former minister Shlomo Benizri, who were both convicted of serious crimes. It was also determined that former prime minister Ehud Olmert will be brought to trial on serious charges of public corruption.

The convergence of all these events highlights the importance of the decisions made by Attorney General Menachem Mazuz, who has the last word with regard to charging the very highest of officials. Mazuz began his term of office with the hasty and mistaken decision not to bring former prime minister Ariel Sharon to trial over the so-called Greek Island Affair, contrary to the position of Justice Edna Arbel, who was then state attorney.

Mazuz's term is nearing its end, and among his other achievements he has chalked up the indictment of senior officials for serious crimes as well as making difficult decisions that are now being examined by the courts. The fact that the most senior state officials have been put on trial for criminal offenses indicates that public status does not make one immune to the imposition of the law - a lesson whose importance cannot be underestimated.

The important role played by the attorney general makes it imperative to study his position thoroughly. Parallel to this, a reassessment of this position, encompassing all aspects of the rule of law and justice, has been long overdue. In January, Mazuz will have completed a six-year stint, as determined by the government in August 2000 - a decision which led to a reform in the way in which the attorney general is chosen. This came in the wake of the selection of Roni Bar-On as attorney general - at a time when he was a member of the Likud central committee - under the heading of "Miscellaneous" on the government's agenda, while the future appointment was kept hidden.

Today, too, the government has the right to select an attorney general as it sees fit, but it can do so only if the candidate has received the recommendation of a committee headed by a retired justice from the Supreme Court and whose members include the following: a minister of justice or former attorney general; a Knesset member elected by the Knesset's Constitution, Law and Justice Committee; a representative of the Israel Bar Association; and an academic. The incumbent justice minister does not have the same power as in the past in terms of selecting the candidate, nor does the prime minister have a decisive voice in the selection. However their influence is still great. The minister's recommendations weigh significantly on the recommendations of the committee.

Justice Minister Yaakov Neeman now faces a difficult decision with regard to formulating his recommendation for attorney general. In accordance with the government's determination, the candidate must be "suitable and worthy" in light of the principles laid down by the Shamgar Committee, which discussed the process of making appointments to the position. The attorney general is supposed to be cut off from the world of politics, astute, and well versed in the fields of criminal and public law, in addition to being formally and substantively qualified to serve in the Supreme Court.

The conclusion of Mazuz's term not only creates a need for appointing a new attorney general, but also presents the opportunity for reassessing the existing institution in which the attorney general plays a dual role - director-general of the prosecution on the one hand, and legal adviser to the government and the ministers on the other (who must also represent the state in all the courts, including the High Court of Justice). This setup - in which the person authorized to bring ministers to trial is the same person who is supposed to advise the government and its ministers - creates a substantial possibility of conflict of interest, and also seems improper. Even an untenable fear of the possibility that personal relations could have an effect on the decision, can destroy the principles of the equality of all before the law.

The heavy workload involved, the concentration of powers, and the conflict of interests have, over the years, led to suggestions that a separation be made between the position of director-general of the prosecution and the other functions of the attorney general. This writer, together with the late Prof. Leon Sheleff, raised a proposal in this spirit before the Shamgar Committee. In its 1998 report, the committee rejected the separation concept due to the fear that this would lead to a devaluation in the status of the attorney general if his punitive powers were removed.

This approach must be re-examined in the light of the increased functions of the attorney general whose authority is fixed in more than 200 laws, and the large number of charges against public figures that take up so much of his time. By virtue of a separation, it would be possible also to appoint an expert in civil public law to the position of attorney general, and an expert with practical experience in criminal law to the position of prosecutor.

Removing the attorney general's authority to prosecute will leave in his hands the power to represent the government and its ministers and to advise it, as long as there is no change to the position according to which his opinion obliges the government and its ministers - the position stipulated in the ruling by the High Court of Justice. This is contrary to the problematic proposal made by former justice minister Daniel Friedmann to split the authority of the attorney general in such a manner that his opinion would not obligate the government. If therefore the attorney general maintains the status of the authoritative interpreter of the law, whose opinion is mandatory, then a split entrusting decisions about criminal affairs to a "director-general of the prosecution" will be beneficial to the skillful and effective enforcement of the law.

It is possible that the director-general of the prosecution would be the state attorney or whoever is authorized to make the final decision with a broad view, after the prosecution officials have completed their work. In recent months, the justice minister has been examining the issue of a legal separation fence. A re-examination is clearly in the public interest.