SUMMARY OF A ROUNDTABLE FORUM ON THE DIVISION OF POWERS OF THE STATE ATTORNEY GENERAL MONDAY, 7 SEPTEMBER 2009
IDI convened a George Schultz Roundtable Forum in Jerusalem on Monday, 7 September 2009, to discuss the current initiative to separate the two main powers of the State Attorney General – providing legal counsel to the executive branch of government and serving as head of Israel’s general prosecution system. The issue is being discussed by the Justice Ministry given the fact that Menachem 'Meni' Mazuz’s term of office as State Attorney General is about to expire.
Participating in the discussion were Minister of Justice, Prof. Yaakov Ne'eman, State Attorney General Menachem 'Meni' Mazuz, former President of the Supreme Court Meir Shamgar, former Supreme Court Justice, Prof. Yitzhak Zamir, Prof. Susie Navot, Dr. Yossi Beilin, Head of the Israel Bar Association, Adv. Yuri Guy-Ron, Adv. Dan Avi-Yitzhak, Adv. Moshe Gavish, President of the Israel Democracy Institute Dr. Arik Carmon, Prof. Yedidia Stern, Prof. Mordechai Kremnitzer, and Ms. Carmit Guy who moderated the forum.
The discussion was opened by Prof. Mordechai Kremnitzer, Vice President of the Israel Democracy Institute, who expressed his desire to examine the possibility of dividing the role of the State Attorney General in a manner that would not jeopardize the status of the two new roles created – legal counsel for the executive branch and head of the general prosecution system.
“These are totally different functions. There is no natural, organizational affinity between the advisory power and the prosecutorial power,” explained Prof. Kremnitzer, stating that there is a general tendency now to separate these powers. In his words, each of the two central roles of the State Attorney General demands expertise in different areas of knowledge and, therefore, it is probable that a candidate who is suited to fulfill one of these roles may not necessarily be suited to fulfill the other role as well.
Prof. Kremnitzer explained that according to the job’s present format, the State Attorney General cannot properly execute his functions in terms of counsel and in terms of enforcement. “There is a built-in conflict of interests between the two functions,” he stated. “In the current system, the Attorney General must sometimes decide on matters in which he himself is involved as counsel – given the urgency of the fact that he has given the government 'authorized advice’, for example, in the matter concerning Barak’s non-profit associations.”
The problem, says Prof. Kremnitzer, is not merely ethical, but also professional and public. “Due to the lack of expertise at the highest level, we cannot be certain that the job will be carried out in the best possible manner,” he explained. According to Kremnitzer, if an Attorney General is appointed lacking the highest level of expertise, it will be difficult to secure public legitimacy and recognition of his authority.
In Prof. Kremnitzer’s opinion, owing to past trials involving government officials, recent governments have endeavored to appoint State Attorneys General who would be sympathetic to them. Therefore, it would be proper if the head of the general prosecution system is a professional who is not appointed by the government, making him independent from the government in appearance and in fact.
“Obviously, anyone who proposes separating the position has an understanding that is similar to the one presented here,” Prof. Kremnitzer summarized in his remarks concerning calls to split the position which, in his opinion, originated with a general initiative to weaken the legal system in Israel for political motives. “There are different ways to divide the role of the State Attorney General – and, in fact, it is possible to split it in such a way as to destroy both powers and strike a death blow to the rule of law. However, I support a division that will actually strengthen both aspects of the job.” Prof. Kremnitzer added that a decision of this nature should be made through Knesset legislation rather than by government fiat.
State Attorney General Meni Mazuz, who will be ending his term of office soon, defended the current arrangement of his position. “It is important to stress that we are not dealing with an academic discussion,” began Adv. Mazuz. “In such a discussion, I would express somewhat different opinions.”
“Given the current reality, a connection between the State Attorney General and the prosecution in Israel is critical,” stated Adv. Mazuz. “A division would weaken the Attorney General’s status, first and foremost, and to a lesser degree, the prosecution as well. The struggle for integrity, which takes place behind closed doors, is being carried out with regard to the Attorney General and not the prosecution. Weakening the institution of the State Attorney General will lead to a collapse of the legal counsel system, which is the central watchdog for safeguarding that integrity. Even if this is not the intent, I have no doubt that the immediate outcome of any division would be the politicization of the role of the State Attorney General. If there is any barrier that can prevent this from happening, it is the fact that the Attorney General is also the Chief Prosecutor. An Attorney General who is not in charge of the prosecution will be acting on the basis of the personal and political needs of government ministers. I do not believe the State of Israel would have been able to cope with the wave of corruption seen in recent years if the State Attorney General’s powers had been split.”
“Undoubtedly, the connection between the roles of the State Attorney General raises questions and arguments, and there are certain aspects that are not ideal. However, from a comprehensive point of view, it is reminiscent of what is commonly said about democracy – it may not be the best system we have, but all the others are even worse. If we were to look closely at any other variation we would find that its disadvantages were much more obvious and apparent than its advantages,” said Adv. Mazuz.
In his opinion, the State Attorney General is not a political figure today, but rather a professional civil servant, a legal counsel whose job is to advise the government without having to be a political figure, someone whose goals are the same as those of the government that appointed him to his position. According to Adv. Mazuz, there is not necessarily any contradiction between the advisory role and the enforcement role of the State Attorney General. “There is no contradiction between the counseling work and prosecution work,” said Adv. Mazuz. “This is also the way it works in the military legal system – the Judge Advocate General is both the advisory agency and the head of the military prosecutor’s office. The same holds true for the government and local authorities. These are two means for achieving the same objective. This is most prominent in the work of the central government – the integration allows not only for greater effectiveness, but for a more comprehensive and holistic treatment of any problem. There are numerous examples illustrating that exposure of criminal activity is dealt with using the tools available to the General Prosecutor alongside the tools of the State Attorney General; when dealing with both routine crime or organized crime, the handling is integrative.”
“It isn’t pleasant to work with a minister or prime minister who is under investigation, but the impact that this has on the ongoing work is minimal to non-existent,” added Adv. Mazuz. “Most ministers, most of the time, are neither being investigated nor are they on trial and, therefore, this phenomenon remains marginal, even in recent years. The argument of conflict of interests comes up occasionally, when it’s convenient, but the familiarity between the government and its Attorney General prevents him from exhausting his authority. Opposing arguments state that the position of the State Attorney General as head of the general prosecution requires that he distance himself, which negatively affects his relationship with the government ministers. These arguments are not based on reality.”
According to Adv. Mazuz, dividing the powers of the State Attorney General could weaken, and even undermine, the mechanism that controls the prosecution system. Under such circumstances, he claims, “the prosecution would supervise itself.” To illustrate the problem implied by such a situation, Adv. Mazuz cited the issue of wiretaps carried out by the police under orders from and with the approval of the General Prosecution when deemed necessary. With no external supervision, the prosecution would have to oversee the manner in which the police carried out its instructions, which is liable to be problematic from the start. In such a situation, the prosecution would have no interest in exposing any failures or excesses that could result.
“The fact that the State Attorney General is an external agent, with a certain distance from routine legal action, gives him, in my opinion, a broader and more integrative perspective, and this is translated into decisions on a daily basis,” explained Adv. Mazuz. With regard to the argument that the control mechanism is overburdened as a result of its dual role, Mazuz stated that any senior position in the public or private sector is overburdened. “The overload can be dealt with using other tools – decentralization, delegating authority, and additional manpower,” he said.
Retired Justice Meir Shamgar, former President of the Supreme Court, has served as State Attorney General in the past and even headed a committee charged with investigating the status of State Attorney General. As does Mazuz, Shamgar believes that the current powers of the State Attorney General should not be separated.
“I stand by my opinion that separation would weaken the institution; I haven’t changed my mind,” said Shamgar. “I see what has been proposed here and it is difficult to ignore those stirring up the issue of separation of powers, trying to create a new reality that would split the central axis in the fight against crime and government corruption.”
“Such a split would weaken both divisions of the role of the State Attorney General and would create a reality even worse than the present,” Shamgar stated. “There is something tragicomic in the fact that the proposal to divide the position is being raised precisely at a time when two government ministers are being imprisoned and a prime minister is about to stand trial. There has been a constant assault on the rule of law and one of the ways to prevent this is to have a constitution,” he added.
Former Supreme Court Justice, Prof. Yitzhak Zamir, also served as State Attorney General. As with Shamgar and Mazuz, Prof. Zamir feels that the definition of the role of the Attorney General should remain as is. “I am clearly and steadfastly opposed to the proposal of splitting the institution of State Attorney General,” announced Zamir. “My opinion is based on decades of experience and personal observation, and not necessarily when I served as Attorney General. During most of my years in the profession, I was in a position of opposition against the State Attorney General, and based on this varied experience, I believe that dividing up the position would be no less than a social disaster that would threaten the rule of law in the country. It would be the worst possible measure of all those we have heard with regard to legal reform.”
The Attorney General is the junction upon which the operation of the police and the High Court of Justice is dependent; that’s the way it is,” explained Prof. Zamir. “No matter what the reasons, there is no doubt that this proposal weakens the institution of State Attorney General. If we take away half of his powers – naturally, he will be weaker. Today we need an Attorney General that is especially strong because his fight is much more difficult than ever, given the powerful struggle for the rule of law, government integrity, and the image of society.”
According to Prof. Zamir, the definition of the position of State Attorney General does not embody any conflict of interests. “This argument is overstated; there is no conflict of interest,” he said. “This argument derives from a failure to understand the position that stems largely from its name, which does not describe the job. The job of the State Attorney General is to go to a minister and tell him, ‘Sir, this is the law. Within the context of the law, do what you see fit and if you have any trouble – I will help you’.”
Adv. Dan Avi-Yitzhak represented a position diametrically opposed to that presented by the Attorneys General. “In my view, the present system is broken,” said Adv. Avi-Yitzhak. “The public’s faith in this system has been seriously damaged. The fact that those in favor of the split come from two totally different approaches does not weaken their reasoning, but rather reinforces it.”
“I believe that suspicion of politicians is completely warranted, but I think we need to cast that same suspicion upon professional officials,” he added. “I believe that the authority and roles presently held by the State Attorney General are dangerous and exaggerated. Nevertheless, I feel that our proposal [to divide the powers] will significantly enhance the capabilities of the law enforcement system, in general.”
According to Adv. Avi-Yitzhak, even though the government selects the State Attorney General only after his candidacy has been vetted by a special committee, there is still something wrong with the fact that it has a decisive influence in choosing the General Prosecutor. “To date nobody would even consider giving the government the final word in appointing its Attorney General; and no one would ever consider allowing someone else to appoint the Attorney General for it. But why should it have this right in connection with the General Prosecutor? The manner in which such a position is selected, and no less important – the manner in which the position is terminated – should depend as little as possible upon the government .”
“I know, and perhaps Mr. Mazuz can confirm this, that decisions made by ministers when they prepare to vote in the government, are occasionally motivated by a personal fear of investigations and proceedings on the State Attorney General’s desk. I say this based on personal knowledge. This is a very, very inappropriate situation. If there is such a relationship, it is an unseemly relationship based, inter alia, on the excessive powers of the State Attorney General, the concentration of powers by someone else,” added Adv. Avi-Yitzhak. In his opinion, the fact that the advice given by the State Attorney General is “coercive advice” that obligates the government to behave in a certain way is also problematic. The alternative to this situation is that the government would not be subject to this advice but, when necessary, would be subject to criticism from the court.
Minister of Justice, Prof. Yaakov Ne'eman, wanted to emphasize that this is a complex and sensitive issue. Nonetheless, he admitted that his office is considering dividing the powers of the State Attorney General. “There are advantages and disadvantages to all of the proposals, and we need to know what is important, what is the objective, and not to be carried away by all kinds of clichés,” he said. “I hear justifications for and against, and each of them must be duly considered. I have no opinion on the matter.”
“There is no doubt that the present situation is undesirable, but a separation – I purposely use this word because it isn’t my opinion – that would allow the government to take control of the Attorney General’s role is also undesirable. No one can convince me that any of the methods is all good or all bad; they need to be considered thoroughly,” said Justice Minister Ne’eman, stating that he supports the proposal based on the statements made by Prof. Kremnitzer.
According to Minister Ne’eman, in recent years the office of the State Attorney General has become overloaded. “Here are some facts I found in the examinations I conducted: In 1999 there were 482 attorneys in the Justice Ministry, and 740 in the other ministries. At the end of 2008 the Justice Ministry already had 844 attorneys and there were 1,717 in the other government ministries. The scope of legislation grew tens of times over. Between 2000 and 2008, the State Attorney General was asked to express a professional opinion on more than 10,000 private Knesset bills.”
“Explain to me,” the Minister asked, “how the Attorney General can give an opinion to someone when he is preparing an indictment against him? In such a case, how can the person understand whether the opinion truly represents the law rather than other considerations? I don’t suspect any of the State Attorneys General of giving an opinion that does not coincide with the law, but how does that look?”
“The State of Israel presently suffers from a major problem of governance,” added Minister Ne'eman. “One of the problems of governance is that the government must have very strong support – and I mean particularly in the economic spheres – against private attorneys who have strong clients that wield a great deal of power.”
According to Justice Minister Ne'eman, in the event the powers of the State Attorney General are, in fact, divided, we must ensure that the General Prosecutor in its new configuration is not appointed by political figures. “If the handing down of indictments is not in the hands of the State Attorney General, but in someone else’s hands, the head of the prosecution system must be appointed in a much more independent fashion, including his continued activity and termination,” he explained. In his opinion, if and when a decision is made on the matter, it will apparently be made by the government and not through legislative process. “If there really is a division, then the process of choosing the head of the prosecution system should be turned over to legislative process,” he cautioned.
“We should not assume extreme positions, and we should find the best balance between both sides. Each of the proposals has advantages and disadvantages, and we cannot state unequivocally ‘follow this example’” he concluded.
Dr. Yossi Beilin, who once served as Minister of Justice, feels there is no real reason to split the powers of the State Attorney General. “I think that separation would be a mistake,” said Dr. Beilin. “The problem is that we have recently undergone an unreal tenure by a Justice Minister [Prof. Daniel Friedman] who sought to destroy the High Court of Justice and the institution of the State Attorney General. When someone comes along now and says that he is examining the issue and we should split the position – it is impossible to disconnect this from the context of the previous Justice Minister.”
Similar to Prof. Zamir, Dr. Beilin also believes that the name of the position gives a wrong impression regarding its powers. “I suggest changing the name of the position, to something like “the Chief Jurist” or “NationalJjurist.” “State Attorney General” is a poor choice of words. Additionally, Dr. Beilin stated that the Attorney General should not participate in government meetings. “The moment he participates in the meetings, he becomes part of the decision making body and is pushed to make off the cuff decisions – this is not how the job should be carried out,” he explained.
Prof. Susie Navot described four flaws in the present definition of the State Attorney General’s role: Concentration of powers, lack of supervision on the Attorney General’s work, suspected conflict of interests between his role as prosecutor and his role as advisor, and overload. According to her, the litigiousness of Israeli society also places a burden on the role of the State Attorney General.
“All of this obligates a reexamination of the role and I share the opinions that call for a separation – but cautiously,” she said. “The weakness or strength of the institution of the State Attorney General is not the objective,” added Prof. Navot. “The goal is the public good, the public interest. One more comment, on a personal note – I don’t believe in strong or weak institutions. The power is also directly connected to the person serving at the head of the institution. It isn’t the institution that is strong or weak. The real test is the person and the people who fulfill their functions, their status and their independence, their honesty and its establishment as the highest legal authority.”
The Head of the Israel Bar Association, Adv. Yuri Guy-Ron, demanded that Minister Ne'eman state at this point in time the nature of the planned change in the role of the State Attorney General, if such a change is, in fact, in the offing. In his opinion, the change in powers will influence potential candidates regarding their willingness to serve in this position.
Adv. Guy-Ron raised the general outlines of a compromise solution: “My position is the same as the position stated by Mazuz and Shamgar, but I have a proposition: I would split the role of the State Prosecutor and appoint someone in parallel to the State Prosecutor, who would remain the acting Chief Prosecutor, and appoint a government attorney, who would advise the government.”
Prof. Yedidia Stern, Vice President of the Israel Democracy Institute, concluded the discussion by expressing concern regarding the logic expressed by many of the speakers. “What worries me is that the principal argument against separating the powers of the State Attorney General is that the Attorney General would be weakened, and why? Because no one would listen to him? Why wouldn’t they listen to him? Because he no longer heads the general prosecution system? This is an anti-cultural argument, which assumes that public officials and their actions are dependent on some kind of ruler held by the State Attorney General. If this is the case, then this is a sad situation that should be dealt with using sharper measures.”