The Right Attorney General

The more the prime minister distances himself from any attempt to influence the committee's recommendations for an attorney general, the better he will be.

Today's scheduled meeting between Prime Minister Benjamin Netanyahu and members of the search committee for a new attorney general is not likely to be particularly significant. The prime minister has not yet exercised his right to propose a candidate in writing, and he will presumably also refrain from doing so orally, thereby making it easier for the committee to weigh professional considerations as it sees fit, without external pressure.

Netanyahu's restraint accords well with the cabinet's August 2000 decision, which stated that the cabinet would choose the attorney general, but only from among a list of candidates forwarded by a search committee whose recommendations are not supposed to be influenced, either positively or negatively, by the fact that a given candidate is seen as having the support of either the prime minister or the justice minister.

Granted, the decision does require the committee to hold "consultations" with the two ministers over "the candidates' suitability for the post," but even so, the panel is not supposed to give any special weight to their views. Were this not so, the public's faith in the person who is supposed to enforce the law impartially might be undermined.

Therefore, the more the prime minister and justice minister distance themselves from any attempt to influence the committee's recommendations, the better it will be.

The purpose of the committee's establishment - created in response to Roni Bar-On's short-lived appointment as attorney general in 1997 and the subsequent recommendations of the Shamgar committee - was to ensure that the attorney general is chosen on the basis of professional legal considerations rather than political ones. The cabinet, which adopted the Shamgar report, agreed that the attorney general would be one of the candidates recommended by a search committee. And the fact that this committee is chaired by a retired Supreme Court justice shows that the choice is supposed to be based on the candidates' qualifications for sitting on the Supreme Court, along with their professional experience and suitability, from both a formal and substantive standpoint.

The cabinet's decision that the consent of at least four of the search committee's five members would be needed to recommend a candidate was meant to ensure that the candidates would be people who enjoyed a broad consensus among the panel's members - all of whom are jurists, though this is not technically necessary. But in practice, this good intention has resulted in any two committee members being able to wield veto power, and has thereby created an opening for all kinds of deals, and for thwarting the majority's preferences.

Thus the reported demand by two current committee members, former Likud justice minister Moshe Nissim and current Likud MK Yariv Levin, that the list of three candidates submitted to the cabinet include at least two of their choices, is inappropriate. The public must be convinced that the committee's decisions are free of any extraneous considerations or "dictates" of any kind.

Menachem Mazuz's appointment as attorney general six years ago was ensured by the fact that he was supported by then-justice minister Yosef Lapid. Lapid's backing contributed both to Mazuz's inclusion in the list of three finalists submitted to the cabinet and to his ultimate selection, even though the other two finalists, then-District Court judges David Cheshin and Uzi Vogelman, were viewed by many experts in the field as more experienced and better qualified.

The appointment of a new attorney general now must be made with the understanding that this position has not yet been split in two. Therefore, the choice must give great weight to the candidates' experience in criminal law. Mazuz's hasty decision not to indict Ariel Sharon in the Greek island case - a decision made almost immediately after his appointment, in defiance of the position of then-state prosecutor Edna Arbel, and which Prof. Mordechai Kremnitzer recently termed "scandalous" - attests to just how important it is to appoint an attorney general with experience in criminal law.

If the prime minister were to come out today in favor of appointing a public commission to prepare the professional and theoretical infrastructure for a proper discussion of the highly controversial proposal to split the attorney general's job in two, he would contribute to clarifying this important issue, and also send the search committee the proper message: that it needs to propose candidates suitable for the job in its current multifaceted format. If the job is likely to be split imminently, however, the considerations would be different.

The prime minister could also initiate a move to change the previous cabinet decision, effective immediately, so that the search committee would be able to recommend candidates by a simple majority of its members. He would thereby deprive any two members of veto power and increase the chances of a decision being made pursuant to a debate that, even if sharp, is also substantive.