ISRAEL AT WAR - DAY 143

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Coalition set to split role of AG, make it a political appointment – report

Government also wants to limit legal advisers to nonbinding opinions; Likud MK says she’ll seek to block appointment of Isaac Amit as next Supreme Court chief

Attorney General Gali Baharav-Miara attends a conference of the Israeli chapter of the Association of Corporate Counsel (ACC) in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90)
Attorney General Gali Baharav-Miara attends a conference of the Israeli chapter of the Association of Corporate Counsel (ACC) in Tel Aviv, July 5, 2022. (Avshalom Sassoni/Flash90)

As the Knesset reconvened for its summer session on Sunday, compromise talks on the judicial overhaul were set to shift focus, with the coalition reportedly proposing that the role of attorney general be divided and that it should become a political appointment.

The coalition is proposing that the attorney general be appointed by a search committee picked by the ruling bloc, with the term lasting only as long as that government and the position thus becoming a completely political appointment, the Ynet news site reported.

Currently, the attorney general is appointed for a fixed period of six years, regardless of any change in government.

It is highly unlikely that the opposition would agree to such a change, but if it did, the legislation would be prepared by the office of Attorney General Gali Baharav-Miara, in coordination with Justice Minister Yariv Levin, the report said.

The coalition also wants the proposed legislation to split the attorney general’s role into two: a chief government legal adviser and a chief prosecutor.

Critics of the current situation have argued for years that the dual role creates an inherent conflict of interest when deciding whether to file an indictment against a member of the government.

Justice Minister Yariv Levin speaks at a rally in support of the government’s planned judicial overhaul, outside the Knesset on April 27, 2023. (Arie Leib Abrams/Flash90)

Former attorney general Avichai Mandelblit and others have said that splitting the role would undermine the independence of the chief prosecutor.

In addition, taking such steps while Prime Minister Benjamin Netanyahu’s corruption trial is ongoing could give a new official of this sort the power to reconsider the entire trial.

The proposal is being floated amid ongoing negotiations on the government’s contentious judicial overhaul plans, brokered by President Isaac Herzog.

The report said that if the two negotiating sides fail to reach an agreement, a bill will be proposed on the matter in June. The coalition is currently focusing all of its efforts on approving the budget in its final two readings by May 29; a failure to do so would bring about the collapse of the government and automatic early elections.

Baharav-Miara is expected to oppose the moves on the grounds that it would mean the role of attorney general would be a political appointment, with the office-holder beholden to the coalition.

But the report said, without citing sources, that even though members of the coalition would likely speak out against Baharav-Miara if she were indeed to oppose the proposal, it was unlikely that she would be fired for her position — for the time being, at least — in light of the uproar when Netanyahu announced the sacking of Defense Minister Yoav Gallant.

Gallant was fired shortly after he said that the judicial overhaul posed a national security risk. He was later formally reinstated amid a widespread public backlash.

“It is clear to us that the move to fire the attorney general is procedurally very complicated, and the chances are that the High Court will stop it,” an unnamed source was quoted as saying.

Religious Zionism MK Simcha Rothman, a key architect of the contentious judicial overhaul, told Ynet the attorney-general is a political appointment “in most countries of the world, and I think it is a very correct idea.”

While many nations have a politically appointed attorney general, they also have checks in place on the government’s power, such as a constitution or a second executive house.

“Today there is an almost complete consensus that a fundamental reform of the judicial system is necessary. I don’t know how and when, but there will be a reform,” the far-right lawmaker said.

MK Simcha Rotman at a Constitution Committee meeting at the Knesset on March 27, 2023 (Yonatan Sindel/Flash90)

According to the report, Baharav-Miara is also expected to oppose legislation that would severely limit the power of ministries’ legal counsels.

The most extreme version of that legislation would transform legal advisers from professional authorities to discretionary positions. The bill would enable ministers to appoint their own legal advisers, and also make these advisers’ legal opinions non-binding on ministers and the cabinet.

Currently, each ministry’s legal counsel falls under the aegis of the attorney general, to preserve their independence from political influence, and their positions are binding upon ministries. Proponents of the overhaul frequently chafe at the intervention of the attorney general and ministerial legal counsels, who they say too frequently oppose and override the policy initiatives of the ministers they advise.

At a January hearing of the Knesset’s Constitution and Law Committee, Deputy Attorney General Gil Limon said that the legal advisers must remain apolitical in order to maintain the rule of law and public integrity.

“Every day, the administrative authorities in the State of Israel make hundreds and thousands of decisions — managing government personnel, decisions on tenders, promoting government decisions, drafting legislation and more — alongside the work of the legal advisers,” Limon said.

“The legal advice to the government works to ensure that these decisions are made in a proper manner, while maintaining integrity and protecting human rights. The bill that was submitted to the committee will actually collapse the intra-governmental guarantees for maintaining the rule of law in the operation of the government ministries,” he charged.

The proposed legislation would allow Prime Minister Benjamin Netanyahu to remove the legal adviser at the Prime Minister’s Office, Shlomit Barnea Farago, with whom he has clashed over his spending and the return of state gifts.

Likud MK seeks to block next Supreme Court president

Separately on Sunday, Likud MK Tally Gotliv said that she intended to put herself forward for a position on the Judicial Selection Committee and work to ensure that the next head of the Supreme Court was not the current expected candidate based on seniority.

“I and Justice Minister Levin and another minister will act as a bulwark against the appointment of Isaac Amit as president of the Supreme Court,” Gotliv tweeted. “You don’t need a reform for this, only resilience and resistance against the mud that will continue to be thrown at me for my audacity to keep the provisions of the existing law as it is.”

MK Tally Gotliv attends a conference at the Knesset in Jerusalem, on November 28, 2022 (Yonatan Sindel/Flash90)

Current Supreme Court President Esther Hayut is set to step down in October upon reaching age 70, to be replaced by Amit.

Under the current law, the president of the Supreme Court is picked from among the panel of justices already in the court, with the decision traditionally based on seniority.

However, Levin reportedly plans to scrap the seniority-based system, opening up the possibility that the office could be held by someone not already sitting on the bench.

A Channel 13 report in January said that Levin had prepared a legal memorandum according to which “a president or vice president of the Supreme Court will be appointed in the same way that justices of the Supreme Court are appointed, whether they first served as justices of the Supreme Court or not.”

Supreme Court Justice Yitzchak Amit at a Supreme Court hearing, January 23, 2019. (Yonatan Sindel/Flash90)

It remained unclear if his plan would require the president to even be a judge, potentially opening up the possibility of a lawyer or academic heading the nation’s top court.

Along with the proposal regarding legal advisers, the government’s judicial plans also call for giving the coalition control over judicial appointments and allowing the Knesset to circumvent High Court rulings.

Critics say the plans will politicize the court, remove key checks on governmental power and cause grievous harm to Israel’s democratic character. Proponents of the measures say they will rein in a judiciary that they argue has overstepped its bounds.

The attorney general has warned that the coalition’s current package of legislation would hand the government virtually unbridled power, without providing any institutional protections for individual rights.

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