Sa'ar Reveals Plan for Justice System: Curb AG's Power, Public Hearings for Judges

Netael Bandel
Netael Bandel
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Gideon Sa'ar addresses the Knesset plenum in Jerusalem, July, 2020.
Gideon Sa'ar addresses the Knesset plenum in Jerusalem, July, 2020. Credit: Knesset Spokesperson / Adina Walman
Netael Bandel
Netael Bandel

Gideon Sa’ar, founder of the new political party New Hope, said Sunday that after the election he intends to promote extensive reforms in the justice system, including splitting the powers of the attorney general and a process for a selection of judges that would include public hearings.

“Our justice system needs to be repaired, but not destroyed,” Sa’ar said, adding that unlike Prime Minister Benjamin Netanyahu, who is facing criminal corruption charges, he opposes legislation tailored to an individual’s situation. Sa’ar said legislation providing immunity to elected officials is “both improper and distracts from what really needs to be done.”

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According to Sa’ar, the attorney general’s powers as prosecutor should be transferred to the State Prosecutor’s Office due to what he called the “extreme concentration of powers” in the hands of the attorney general, and because “a situation in which the same person advises the prime minister and the ministers on matters of policy and also orders their investigation and indictment is not logical, and involves an inherent conflict of interests.”

The role of attorney general is not enshrined in law, but rather in cabinet decisions and therefore the powers of the attorney general can be split without legislation. Last month, when Sa’ar established his new party, he said he would work for reforms in the justice system.

The issue of dividing the attorney general’s powers between the attorney general and a prosecutor general has been a key issue in the political arena and the justice system for many years. In 1997, a committee convened on the matter, headed by former Supreme Court President Meir Shamgar (who later publicly opposed such a division).

The committee later stated that “the weight of the statements and counsel of the attorney general stems very largely from the concentration and incorporation of his powers.” The committee added: “If the powers of the attorney general are divided, a separation is created that weakens each of the divided areas due to a reduction in his status, including the element of deterrence that there is in the power to take criminal action.”

Nevertheless, over the years, many politicians have supported the separation of the attorney general’s powers, among them justice ministers, including most recently former Justice Minister Ayelet Shaked. She examined the matter in 2015, but nothing came of it due to Netanyahu’s objection. In 2009, then-Defense Minister Ehud Barak tried to establish a committee to study the separation of powers.

When Ayelet Shaked (R) was Justice Minister, she attempted to advance efforts to separate the powers of the attorney general. She is seated next to Attorney General Avichai Mandelblit (L) at her farewCredit: Emil Salman

Justice ministers Daniel Friedmann and Yaakov Neeman tried to split the attorney general’s powers but encountered harsh opposition from then-Attorney General Menachem Mazuz, now an outgoing Supreme Court justice. Mazuz warned that after the split, “every minster will do what they want while completely ignoring the opinion of attorney generals.” Traditionally, attorneys general oppose such a division of powers, as does current Attorney General Avichai Mendelblit, who said two weeks ago: “It is not right to study a split of the role when there is an indictment pending against the prime minister,” adding that “advising” should not be separated from “enforcing.”

Over the last decade, Netanyahu had opposed dividing the attorney general’s powers but has recently changed his mind and begun to support it.

Sa’ar’s second proposal, changing the system for the selection of judges so that it would include public hearings at which judicial candidates answered questions, follows a bill in 2019 that MK Zvi Hauser attempted to get passed. The idea was derived from the American system in which candidates for Supreme Court justice are vetted by the U.S. Senate.

There was also a similar effort in 2011 sponsored by two Likud MKs at the time, Zeev Elkin and Yariv Levin, but it encountered opposition within Likud itself, including objections from Sa’ar and Netanyahu. Sa’ar said at the time that it would shift responsibility for the selection of judges from the Judicial Appointments Committee – which includes representation from the Supreme Court, the cabinet and the Israel Bar Association in addition to the Knesset – to the Knesset Constitution, Law and Justice Committee.

The idea was also criticized at the time by then-Supreme Court President Dorit Beinisch. “Do the sponsors of the bill also propose adopting undisputed respect for the rulings of the U.S. Supreme Court? We are not seeking respect and awe for ourselves, but we absolutely expect that respect be maintained for the institution whose sole power is from the public’s trust,” she said.

Currently, however, Sa’ar is proposing a public hearing before the Judicial Appointments Committee or in the Knesset. “The appointment of justices to the Supreme Court doesn’t need to be conducted in secret,” he said Sunday. Under the current system candidates undergo preliminary interviews prior to any vote by the committee but they are not conducted publicly.

In the past, then-Supreme Court President Aharon Barak argued that the members of the committee should refrain from asking candidates for Supreme Court justice about their positions on specific legal issues and confine themselves to the quality of the legal decisions that they write. As a result, he also opposed the candidacy of the late legal scholar Ruth Gavison after he said that she had publicly disclosed an agenda.

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