I read with shock and dismay the words of Likud Knesset Member Yoav Kisch that “if the attorney general authorizes the caretaker government to appoint the chief of staff, the most direct impact will be on her and her standing. Only a biased attorney general would permit this, and if she does act this way, she’ll be replaced as soon as we return to power.”
It’s evident that Kisch doesn’t understand the legal and normative framework in which the office of the government’s attorney general operates, so it is only proper to explain it to him.
Part of the attorney general’s authority rests in legislation and part of it was established by the Supreme Court. For example, the role of the attorney general as chief prosecutor can be derived from Section 12 of the Criminal Procedure Law. However, the attorney general’s authority and standing as legal adviser and interpreter for the executive doesn’t appear in any law but was established by Supreme Court rulings and the recommendations of two government commissions chaired by former Justices Shimon Agranat and Meir Shamgar.
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In the wake of the Shamgar Commission recommendations, which was formed in response to the Bar-On-Hebron affair (in which I represented Arye Dery at the time), the procedure for appointing an attorney general was determined. Benjamin Netanyahu knows very well that the current attorney general, Gali Baharav-Miara, was named lawfully and cannot be rightfully dismissed.
Baharav-Miara is expected to approve Defense Minister Benny Gantz appointing a new army chief of staff even though he is serving in a caretaker government. For that, she has the backing of the Defense Ministry’s legal adviser.
When I was attorney general, I was faced in 2011 with the question of naming a new chief of staff. Then-Prime Minister Netanyahu and then-Defense Minister Ehud Barak planned to appoint Southern Commander Yoav Galant to succeed Gabi Ashkenazi. But after reports surfaced about Galant’s building illegally on public property at his home in Moshav Amikam, a lawsuit was filed in the High Court of Justice challenging the appointment.
It was not easy for me to advise the cabinet at the time, as I did, that “the existing facts regarding Gen. Galant’s conduct in the aforesaid context raise significant legal difficulties regarding the reasonableness of the decision to appoint him chief of staff ... It is doubtful whether it is morally appropriate to uphold the decision regarding the appointment.”
Nevertheless, I stressed then that “the decision on naming a chief of staff includes security, political, professional and other considerations that the cabinet has the authority to make.” I offered my opinion but at the same time made clear that the final decision rested with the cabinet, which had to take into account a wider range of factors than I do.
Despite that, the cabinet accepted my recommendations. Although I stated in my opinion that the appointment would create “legal complications,” I didn’t say it was unconstitutional or cannot be approved.
Back then, a little more than a decade ago, a recommendation of the attorney general against a cabinet appointment, even when it had the backing of the two most senior figures in the government, was enough to scotch it. Recall that the cabinet had already approved Galant’s appointment. It wasn’t just a recommendation to appoint him but a cabinet decision that was at stake.
But the Netanyahu of 2011 and the defense minister at the time had enough respect for the attorney general’s opinion for them to rescind the appointment and start up the process of finding a new candidate again. In fact, I can’t recall an instance where a cabinet – or an opposition angling a return to power – ever threatened to replace an attorney general who made a recommendation it didn’t like. The irony is that later, as I wrote in my book, Netanyahu was happy that the appointment was rescinded. After Galant was interviewed on television, the prime minister called me to say, “You saw Galant? We were saved by a miracle.” It teaches you that even an attorney general who has been slandered can protect you from yourself.
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Whatever Baharav-Miara’s decision is in regard to the next chief of staff being appointed by a caretaker government, I can’t help but recoil from the threats that have been made against her and the office of the attorney general. It makes no difference whether her decision is negative (against an appointment) or positive (to approve it).
The attorney general doesn’t serve at the pleasure of the cabinet, and it's irrelevant which government appointed him or her. Attorneys general don’t represent the government, they represent the State of Israel and the rule of law. It’s unthinkable that the attorney general can be threatened when he or she makes a recommendation that someone doesn’t like. It’s simply absurd.
Anyone who considers himself a candidate for prime minister would do well to dissociate himself from Kisch’s remarks and publicly declare his commitment to the rule of law.
Yehuda Weinstein was Israel’s attorney general from 2010-2016.