Marking up bill, Knesset committee head erases clause meant to protect AG’s independence

Knesset Constitution, Law, and Justice Committee head Simcha Rothman excised a key clause from a draft law on the attorney general’s role that would have preserved some apolitical characters of the key position, during a raucous hearing on Monday.

The clause stated that an attorney general would be appointed for a one-term period of six years, as is currently the case. The fixed term means that the attorney general remains in place even if a new government takes office during their tenure.

But Rothman proposed instead that if a new government was dissatisfied with the serving attorney general, it could replace them within the first 100 days of its tenure.

This would enable any government to remove the serving attorney general without any professional grounds or justification, a step that would politicize the role by making it dependent on the goodwill of a given administration.

During the meeting, opposition MKs in the committee denounced Rothman for this and other aspects of the bill, accusing him of engineering a new attorney general role that would be subservient to the government.

“You have turned the legal advisory service into a law for cronies… You have removed the mask. You want a political lawyer for the government. This is regime change,” averred Democrats MK Efrat Rayten.

MK Karine Elharrar (Yesh Atid) made similar comments, asserting that the attorney general would be a “fully political appointment,” and that the coalition simply wanted “an attorney general who will do what the government wants.”

Rothman insisted, however, that his model was legitimate, and pointed to Western democracies such as the US, UK, Canada, and others, where the attorney general is a government minister. Legal scholars have noted, however, that those countries have far more constitutional protections and built-in checks on executive power than Israel does, meaning that the attorney general is a less crucial role.

The current government tried to fire Attorney General Gali Baharav-Miara last year over her repeated opposition to government policies and decisions, but the High Court of Justice ruled the dismissal process illegal and annulled it.

Responding to the government’s claim that it could no longer work with her since she continually blocked its agenda, Baharav-Miara said that she was simply telling the government when it was violating the law, noting that in most cases that went to the High Court, including her own dismissal, the court upheld her position.

The opposition has pointed to the new legislation to split the attorney general role and strip it of its powers as a key component of the government’s renewed judicial overhaul agenda.

As well as changing the appointments process, the new bill would split the role of the attorney general into two different positions and drastically reduce its authority.

The draft legislation is based on a proposal by former justice minister Daniel Friedman, who served in Ehud Olmert’s government and is a strident critic of the legal and judicial systems.

Friedman’s proposals moderated to some degree several draft bills that were approved in preliminary readings in the Knesset and passed to the Constitution Committee. Rothman has, however, already removed some of those moderating clauses during the committee process.

During a previous hearing last Tuesday, Rothman decided to remove another clause in Friedman’s version of the bill that would keep in place the public, professional committee that recommends a candidate for attorney general to be chosen by the government. That committee is headed by a retired Supreme Court judge chosen by the serving court president, and the panel has a majority of legal professionals.

Instead, Rothman’s draft of the bill makes the appointment entirely political, with the prime minister and the justice minister recommending a candidate and the government voting to approve.

Other aspects of the current version of the bill further reduce the influence and authority of the attorney general, who, under Israel’s current legal framework, is a key check on executive power.

The bill, specifically its Clause 23, would nominally preserve the standing of the attorney general’s position papers as reflective of the law, and therefore binding on the government, its agencies, and all branches of executive power.

But Clause 24 of the bill allows the government to decide that a certain position paper of the attorney general is not legally binding, and to further decide for other executive agencies that a position paper is not binding.

The bill also determines that the attorney general will not be automatically invited to cabinet meetings, but that the prime minister can invite them.

Under the legislation, the current powers of the attorney general as head of the prosecution service would also be removed and designated to a new prosecutor general role.

The prosecutor general would, unlike the attorney general, be appointed on the recommendation of a public, professional committee.

But that committee would be substantially politicized, with the justice minister appointing the retired district court or Supreme Court judge to head the committee, unlike the current public committee for recommending candidates for the attorney general where the Supreme Court president appoints the committee chairman.