Justice Minister Ayelet Shaked plans to reexamine the possibility of splitting the attorney general’s role into two: a general counsel whose job is solely to act as chief legal adviser to the government; and head of the public prosecution system.
Shaked’s intentions are cause for concern. Her idea isn’t new. It has been raised in recent years by Daniel Friedman and Yaakov Neeman, two justice ministers whose terms were marked by their efforts to undermine the most vital element of democracy – the separation of powers – and to weaken the judicial authority and rule of law.
Splitting the attorney general’s post is clearly a move to damage the rule of law. The attorney general’s combined duties today ensure comprehensive protection for the rule of law, both because the government’s actions are subject to the law and because steps are taken against those who break it. If the post is split and the attorney general decides, for example, that some government act isn’t legal, while whoever heads the prosecution agrees to defend that act in court, the advisory capacity to the government will in fact be obliterated.
The High Court of Justice highlighted just how important the attorney general’s post is in a detailed ruling laying the foundations of Israeli democracy: “The attorney general’s opinion on a legal matter reflects, for the government, the existing, current legal situation,” it stated, adding, “The government and its authorities’ position regarding the existing law is determined by the attorney general.”
The court made clear that the attorney general and his representatives are not “advisers” in the standard sense of the word, and that “their opinion is binding to the government.”
The Shamgar Commission, which looked into the attorney general’s position following the 1997 Roni Bar-On/Hebron affair, also examined splitting the attorney general’s duties. Retired Justice Meir Shamgar said at the time, “Splitting the duties will weaken both of the position’s divisions and generate a worse reality than the one we know.”
The justice minister’s intention to consider weakening the attorney general’s position – and, in reality, weakening the one whose job is to protect the rule of law – must also be seen as part of the intention of the political wing the minister represents to weaken Israeli democracy in general.
One would have thought the ideological differences between right and left regarding state affairs could be debated and determined with both sides strictly preserving democratic principles. This is how things were when the right wing was headed by Menachem Begin. But things have changed. Maintaining the status quo of occupation and apartheid, and the refusal to advance a peace agreement leading to a Palestinian state, are creating a blatantly undemocratic situation in the territories occupied and controlled by Israel.
In these circumstances, a strong attorney general who insists that the government act legally will become a hindrance.
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