The attorney-general currently holds vast governmental power in his hands, a center of gravity of authority that challenges the principle of separation of powers in a democracy. Concern for Israel’s democratic character is growing in the absence of a constitution that would impose restrictions on the attorney-general. To date, the position has been held by people loyal to the public interest, but there may come a day when the office falls into other hands. The current attorney-general’s balanced and cautious approach, under particularly difficult circumstances, is no guarantee for the future. We can’t rely on the miracle to continue. The system itself must address the present concerns.
There are functional difficulties as well: The two roles require entirely different kinds of expertise. An attorney-general who has an excellent professional grasp of civil law will usually be a novice in criminal law, and vice versa. Thus, the chief prosecutor could be a mere apprentice in the criminal field, or the attorney-general could be one in the civil field. In either case, the public interest will be harmed.
This multiplicity of tasks, combined with the lack of experience in one of the areas under his responsibility, create a huge load on the system. It is busy with current and urgent matters and has trouble making time for strategic concerns. And yet, despite the existence of a State Prosecutor’s Office whose expertise and mission it is to engage with those concerns, the attorneys- general are devoting a significant portion of their time to making decisions on the fate of a specific criminal case involving a public figure. Aside from wasting the time and administrative resources of those responsible for all aspects of the rule of law, the Attorney-General’s Office is attracting public criticism. This state of affairs does not, to say the least, make it easy for the institution to fulfill its central role.
THERE IS also an inherent conflict of interest between the two functions: The attorney-general’s role is to stand with the government and assist it in implementing the policy it was elected to advance. The state prosecutor’s role is to stand up to the government and protect the rule of law from it. These are two entirely different psychological and professional positions. Only angels, not human beings, could with complete openness seek counsel from someone who has the authority to put them on trial.
Faced with these difficulties, the jurists who oppose the split argue, among other things, that if prosecutorial power is taken from the hands of the attorney-general, his deterrence power before the government would diminish, and his advice would go unheeded. In my view, this is an insulting argument, from both a democratic and a cultural point of view. It assumes that the state’s leaders are a bunch of miscreants who, unless there is a whip over their heads, cannot be trusted. Although it has been proven that there are public figures for whom such concern is justified, this implicit defamatory generalization is inappropriate.
Therefore, the split should be supported as long as three principles are upheld. First, the state prosecutor should be appointed by a professional committee, free from political influence, to ensure the office’s complete autonomy. The current method of appointing the attorney-general, in which a professional committee draws up a list of candidates for the government to choose from, should remain as is.
Second, it should be clarified that the attorney-general’s fiduciary duty is not to the government and ministers, but to the public interest. He or she is the citizens’ gatekeeper, tasked with ensuring that the executive branch – the leviathan – operates in accordance with legal standards. Accordingly, the government should not be allowed to be represented by private legal counsel, however displeased it may be with the attorney-general’s position.
Third, the attorney-general’s rulings and instructions should be binding on the government, as long as they have not been rejected by the Supreme Court.
Contrary to popular belief, the split is not a zero-sum game in which politics trumps the judicial system and thereby undermines the rule of law. Instead of sanctifying existing arrangements, splitting should be supported in accordance with the principles outlined above. This would ensure that both institutions function in a more professional and efficient manner. The split will also foster a proper balance between the centers of power in our democracy. The current structural conflict of interest will automatically be resolved, and the institutional independence of both bodies will be maintained, even strengthened.
The current heterogeneous coalition is particularly well positioned to formulate an agreement on an institutional and functional split of the Attorney-General’s Office, out of full fidelity to the rule of law, without which we are sunk.
The writer is president of the Jewish People Policy Institute, and a professor of law at Bar-Ilan University.