By Avraham Yaakov, our legal commentator

The intention to split the role of Attorney General into three must be seen first and foremost in the broader context of the legal coup and the government's attempts to dismantle any balancing and check that might threaten its progress, in complete disconnection from the voice of the people. The bill by the committee chair, MK Simcha Rotman, seeks to effect a dramatic regime change in the form of splitting the role of the Attorney General into three separate positions.

The bill was submitted without professional staff work, without consultation with the relevant professional bodies, and without an explanation of why it is necessary to deviate from the recommendations of a public committee that were adopted by government resolution. Furthermore, the bill is expected to cause serious and irreversible damage: the elimination of the independence of the public legal service, politicization of the enforcement and advisory system, legal chaos that will undermine the clarity of the law, the collapse of essential enforcement systems, and a serious violation of the rule of law and human rights.

1. Content of the bill

The bill seeks to split the role of the Attorney General into three separate positions.

The Attorney General will be appointed by the government at the proposal of the Prime Minister and the Minister of Justice, and will not be required to be a member of the Bar Association. His role will be to provide legal advice to the government. and to office holders, and assistance in the preparation of legislation. His opinions will be protected by attorney-client privilege, and will be binding only if adopted by a government decision. The Attorney General will be subordinate to the Minister of Justice.

The Prosecutor General will be appointed by the Minister of Justice with the approval of the Constitutional Committee. His role will be to serve as the head of the General Prosecution and to conduct criminal proceedings only.

The Prosecutor General will not be authorized to conduct other legal proceedings. His removal from office will be by the government upon the recommendation of the Minister of Justice and with the consent of the Constitutional Committee.

The State Representative in the Courts will be appointed by the Minister of Justice. His role will be to represent the State in the courts in non-criminal proceedings only. He will be subject to government decisions and the instructions of the Minister of Justice, and the government may order the State to be represented by another lawyer in cases it decides upon.

2. A complete contradiction to the recommendations of the Shamgar Committee without any professional basis

The bill completely deviates from the recommendations of the public Shamgar Committee to examine the methods of appointment of the Attorney General from 1998. The Shamgar Committee was a public-professional committee, headed by retired Supreme Court President Meir Shamgar, and its members were Prof. Ruth Gavison, Prof. David Libai, and two former justice ministers who were leading jurists. The committee discussed extensively and thoroughly all questions concerning the role of the Attorney General, heard from dozens of officials and experts, and examined in depth the possibility of splitting the various roles.

After a thorough examination, the Shamgar Committee unanimously rejected the possibility of splitting the roles of the Attorney General. The committee determined that there is no conflict of interest between the various functions of the Attorney General, and that the combination of functions creates a single whole from which authority and the ability to uphold the law without fear and without bias grow. The committee's recommendations were adopted in Government Resolution 2274 of August 20, 2000.

The bill in question does not present any professional staff work that was conducted for the purpose of its formulation. It does not include the collection of a factual infrastructure, is not based on research or analysis of similar situations in other countries, and does not include consultation with the relevant professional bodies. The bill does not refer at all to the recommendations of the Shamgar Committee, and does not explain why one should deviate from recommendations that were formulated through thorough and professional work and adopted by the Israeli government.

3. Elimination of the independence of the public legal service and complete politicization

The bill will eliminate the independence of the public legal service and turn it into a tool in the hands of the political entity. The three positions that the proposal seeks to create will all be appointed by political parties only, without any involvement of a professional-public committee that could ensure their professionalism and independence. The Attorney General will be appointed by the government according to the proposal of the Prime Minister and the Minister of Justice. The Prosecutor General will be appointed by the Minister of Justice with the approval of the Knesset Constitution Committee, which in its current composition is controlled by the coalition. The state representative in the courts will be appointed by the Minister of Justice alone. In the Israeli system of government, in which the executive branch has full control over the Knesset, approval by the Constitution Committee or the Knesset plenum is not enough to ensure a professional and independent appointment. This is a political appointment of those close to the government!

4. The harm to the professionalism of the position

The bill does not only harm the independence of the public legal service, but also its professionalism. The need for independence does not stand in itself, but is a central tool for ensuring high and genuine professionalism in legal advice and enforcement. A professional legal position is one that is based solely on legal considerations, analyzes the complexity of the law as it is, and presents the legal conclusions directly and without distortion. Professionalism also means a willingness to present difficult or uncomfortable legal positions, without trying to please the party in question, cut corners, or adapt legal interpretation to personal, political, or partisan interests.

5. Abolition of the Attorney General’s Public Role and the End of the Rule of Law

The bill abolishes the Attorney General’s central role as a public watchdog and places the government above the law. Two key provisions in the bill transform the Attorney General from a public trustee to a private lawyer for the government, and abolish the government’s obligation to act according to the law:

1. The first provision states that the opinions of the Attorney General shall be protected by attorney-client privilege, and that the Attorney General may not disclose them in any legal proceeding, investigation, or search, unless the client has waived their immunity. This provision turns the Attorney General into a private lawyer of the government, and deprives him of the ability to represent the public interest. In a democratic state, the government is the emissary of the public, and is bound by a duty of loyalty to it. The duty of loyalty requires the government to act openly and to be accountable for its actions. Absolute secrecy of legal opinions allows the government to act secretly and to disconnect from the public that elected it. It deprives the public of the opportunity to criticize the actions of the government and the legal position that guides it, thereby fatally violating the principle of transparency and the government's duty of loyalty to the public.
2. The second, even more severe provision states that the opinion of the Attorney General will be seen as reflecting the existing law only if it is adopted by a government decision. The meaning of this provision is that the government itself will determine what law binds it. Instead of the Attorney General being the authorized interpreter of the law towards government officials, as determined by a long-standing Supreme Court ruling, the government will be able to choose which legal opinions it adopts and which it does not. In other words, the government will decide which laws it accepts and which it does not. This provision constitutes a coup d'état of the principle of the rule of law. The rule of law means that the government is subject to the law and is obliged to act in accordance with it, regardless of its will or interests. When the government can determine which legal provisions it adopts and which it does not, it effectively places itself above the law. This is a devastating result for democracy and the constitutional regime, and it turns the government into an absolute sovereign not subject to any legal restrictions.

These two provisions together transform the Attorney General from a public trustee and guardian of the rule of law into a private lawyer of the government. They deny the Attorney General the opportunity to represent the public interest and ensure that the rule of law is respected. They allow the government to act without any real legal restrictions, and to determine for itself which laws it accepts and which it does not. The result is a practical abolition of the rule of law and the transformation of the democratic regime into an arbitrary government.

6. Legal chaos, harm to legal clarity and human rights

The bill will create unprecedented legal chaos that will severely harm legal clarity and the rights of citizens. In the current situation, all legal questions that arise in the activities of government officials are ultimately decided by the Attorney General, who is the authorized interpreter of the law towards the executive branch. This system ensures clarity and uniformity in the interpretation of the law, equality before the law, and protection of the rights of complainants, suspects, and defendants. When there is certainty about legal interpretation, citizens know what their rights and obligations are, and can act accordingly.

The bill destroys this system. It creates three separate positions, each of which can give a different legal interpretation to the same legal question. The Attorney General will advise government ministries and officials. The Prosecutor General will conduct criminal proceedings and interpret criminal law. The State Representative in the courts will represent the State in civil and administrative proceedings and interpret the law in these areas. Neither will be subject to the interpretation of the other, and there is no mechanism for deciding in the event of a dispute between them.

The result is that the same legal question can receive different answers from different sources of authority in the country.