Justice Minister Gideon Sa’ar wants to complete his move to split the Attorney General’s office in the coming few months, certainly ahead of the convening of the search committee to select a successor for the current AG, Avichai Mandelblit, whose term ends next spring. The committee is expected to convene in September (Rosh Hashanah falls on Sept. 7 this year).
The Attorney General is a civil servant who heads the legal system of the executive branch and the public legal service in Israel. At the same time, the AG is also the government’s attorney, advising the government on legal matters and the preparation of government legal memoranda, and representing the state in the courts.
With so much control over the executive branch, the Israeli AG over the years has acquired more power than any other unelected official in the country, and on occasion more power than most elected officials. And yet, despite its importance, there is no single law that regulates the status and functions of the AG, and they are derived indirectly from existing laws.
Over the years, the Attorney Generals have adopted the position that the government is subject to the Attorney General’s legal interpretations. Consequently, they also believed that the Attorney General should refrain from representing the government before the Supreme Court if they disagree with the position of the government or the minister in a given case, and even present to the court a position contrary to that of the government—on behalf of the government.
Sa’ar, who began his career in 1999 as Government Secretary in Prime Minister Benjamin Netanyahu’s first government, said last January that the “extreme concentration of powers” currently in the hands of the AG justifies the transfer of the prosecuting powers from his office to the state attorney. He added that the need to split the job also stems from the fact that “the situation in which the same person both advises the prime minister and ministers on policy matters and also decides when they should be investigated and prosecuted, is illogical and tainted by a built-in conflict of interest.”
Sa’ar is not the first politician demanding the split of the AG’s office. Former Justice Ministers Yaakov Ne’eman, Prof. Daniel Friedman, and Ayelet Shaked supported the idea. However, in contrast to past attempts, this time there seems to be a good chance of implementing the split initiative in legislation, and it has the support of both coalition and opposition members.
The vast powers of the Israeli AG have no parallel in most Western countries, where there is a separation between the role of the Attorney General and the legal advisor to the government. In 2009, when Israel applied to join the OECD, the organization demanded that it split the role of the attorney general and state prosecutor. The OECD’s position was that you can’t have one person fill both positions because it threatens the guarantee of an objective conduct on the part of the man with two hats.
Supreme Court Justice Menachem Mazuz in June objects to splitting the AG’s powers. “As is the situation in the country today, I strongly oppose the splitting of the position of AG, since the first outcome of splitting the position is that the position would become political,” Mazuz said in a forum of the Israeli Bar Association in Eilat last June. According to him, in the Israeli reality, almost without exception, the push to split the role came from elements that clearly attacked the system and sought to weaken it.
“There’s no doubt that splitting the role of the AG will dramatically weaken the law enforcement system in Israel,” Mazuz added.