Splitting the Attorney General role would be a win-win all around

The most likely endgame scenario in Israel’s attorney general saga is that if the government dares to mandate her dismissal, the High Court will rule the ousting “unreasonable” and block it. The next day’s headlines will declare: “We won!” But this will be another Pyrrhic victory in a string of disastrous “wins” from recent years.

Already, the government has succeeded in undermining trust in the professional institutions responsible for the rule of law, and about half of the public believes Attorney General Gali Baharav-Miara should go. A court ruling preventing this would be like giving aspirin to a cancer patient. It would only reinforce the mistaken notion that the High Court and the attorney general are autocratic tools in the hands of elites to stave off their own obsolescence and impede necessary social change. Another solution is needed – one that fortifies the rule of law in the long term and allows the government to chalk up what it sees as an achievement. Here is a proposal:

Israel’s attorney general wears two hats: she is legal counsel to the executive branch of government and also heads the State Prosecutor’s Office. In previous coalition pacts, it was agreed that the position would be bifurcated so that the chief prosecutor would be autonomous and not subordinate to the attorney general. When I was a candidate for the position, I argued that the role should be split, given important conditions, which I will detail. According to reports, the current attorney general agreed with the appointing justice minister, Gideon Sa’ar, on dividing her role. However, everyone who has ever served as an attorney general or a Supreme Court judge (as far as they have expressed themselves on the matter) unanimously opposes such a split. Who is right?

The current situation is dangerous. Concentrating enormous governmental power in one entity contradicts a central tenet of liberal democracy – the separation of powers. The Attorney General’s Office has become an institutional center of gravity in Israeli governance, absorbing duties in a manner unparalleled in democratic theory and practice. The threat to democracy in Israel is exacerbated in the absence of a constitution that delimits and codifies the attorney general’s authorities and establishes effective oversight mechanisms before turning to the High Court.

Luckily, those who have served in the position so far were devoted to the public interest, but a day may come when the institution falls into ill-intentioned hands. The resounding benevolence of past attorneys general is hardly a guarantee for the future. It would be naïve to rely on the continuation of this good luck. Just imagine if the ouster succeeds and a more “agreeable” attorney general is installed. The system itself must provide an answer to this concern.

There are also functional difficulties. First, entirely different kinds of expertise are required for each of the two roles – the government’s legal counsel and the state’s chief prosecutor. An attorney general who is a civil law virtuoso will typically be a novice in criminal law, and vice versa. When the chief prosecutor is a neophyte in criminal law, or the government’s legal counsel is a rookie in civil law, the public interest is harmed.

Further, the multiplicity of tasks, when met by inexperience in one of the two fields, creates an immense burden on the system. It is preoccupied with the immediate and urgent and does not have the time to deal with the principled and strategic. Thus, despite the existence of a prosecutorial system with abundant expertise and commitment to its mission, attorneys general in recent years have dedicated a significant portion of their time to making decisions about the fate of specific criminal cases involving public figures. Beyond the “waste” of time and management resources of those responsible for all aspects of the rule of law, the attorney general also absorbs public fire that does not, to say the least, make it easier to fulfill this central role.

Hence the inherent conflict of interest between the two functions. The role of legal counsel is to stand by the government in implementing the policies that reflect the will of the people who elected it. The chief prosecutor’s role is to stand up to the government and protect the rule of law from it. These are two entirely different mental and professional positions. Only angels, not governing humans, could fully trust a legal adviser who, with her other hand, might put them on trial.

A proper balance between centers of power

In light of all this, it is appropriate to support the division, provided that it is guaranteed not to weaken the government’s legal counsel or the chief prosecutor but proactively strengthens both. This can be achieved by agreeing on three principles:

First, the method of appointing the chief prosecutor should be through a non-political professional committee, ensuring full autonomy of this position. The current appointment method of appointing the attorney general should be maintained, i.e., a professional committee proposes a list of candidates from which the government selects the legal counsel it sees fit.

Second, it should be clarified that the fiduciary duty of the attorney general (and of the legal advisers in government ministries) is to the general public and the public interest, not to the government and its ministers. Thus, if the government is displeased by any position taken by the attorney general, it cannot resort to private legal representation (except for carefully crafted carve-outs).

Third, a norm (currently in practice) should be formally enacted, stipulating that the determinations and instructions of the attorney general in his or her various capacities are binding on the government unless ruled otherwise by the High Court of Justice.

Struggles between politicians and legal professionals should not be adjudicated in favor of one side. If the government accepts the threefold agreement alongside the institutional split, we will benefit from two separate institutions, each functioning more professionally and efficiently; a proper balance between centers of power in the state will be advanced; the existing conflict of interest will be resolved, and the institutional independence of each body will be preserved, even strengthened. A broad national agreement is required: an institutional and functional division, based on uncompromising loyalty to the rule of law, without which we have no future.