Justice Minister Ayelet Shaked, three former justice ministers, State Attorney Shai Nitzan and other top officials debated Wednesday over whether the attorney-general should serve as a mere adviser to the government or as a gatekeeper to block it from violating the law.
The panel discussions at the Kohelet Forum in Jerusalem took on even greater meaning than usual given the background of a fiery public debate recently over how the government should respond to the recent spike in violence.
Some political officials want the government to relax the rules for the police and the IDF to open fire on Palestinian protesters and to take other tough measures, viewed by others as collective punishment, and have blamed Attorney-General Yehuda Weinstein and government lawyers for allegedly blocking tougher responses.
Taking the opening shot, Shaked blasted the current framework in which sometimes “the attorney-general replaces the discretion of the minister whom he is supposed to represent” and advocate for as the government’s lawyer.
She said the current setup was problematic regarding “who has last word when there is disagreement between the attorney-general and the government” and also regarding what position is presented “to the courts” as the official government position (the cabinet’s view or the attorney-general’s view.) While admitting that the “government should carefully weigh the attorney-general’s advice,” Shaked was adamant that the cabinet and the prime minister have the last word if there is a disagreement.
Moving to a comparative perspective, Shaked argued that no other country in the world gives as much power to their attorney-general as Israel.
Shaked also unleashed a harsh critique on former attorney- general and Supreme Court president Aharon Barak, calling him part of the problem, based on his remarks that when he switched from the Attorney-General’s Office to the Supreme Court he became far less influential.
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According to Shaked, Barak favored the post of attorney- general, since he did not need to share authority with others and could actively involve himself in nearly any government decision, unlike the courts which are reactive and involve several justices weighing in.
While Shaked also made several statements purportedly supporting Weinstein and she never named him during her attacks, her unbridled criticism of him was clear.
Several speakers responded to Shaked’s challenge to the current order.
Former justice ministers Tzipi Livni and Yossi Beilin each were overcome with emotion at different points regarding their opposition to Shaked’s ideas, saying with dark and intense facial expressions “Oy vey” to the country if “the attorney- general is weakened.”
Livni stated that the idea that the government “can blame the attorney-general” for its own failures to solve issues “is nice for the government, but bad for democracy.”
Recounting past events, Beilin said that there were previous eras where the attorney-general was weak or silent when the government broke the law, and that the result was disaster.
Beilin described the 1992 deportation of 415 Hamas members ordered by thenprime minister Yitzhak Rabin as having been ordered without requesting the attorney-general’s advice or approval.
The former justice minister said that its implementation and because of how it was implemented, it was impossible to defend internationally, as no attempt had been made to review each individual’s case.
He also noted that many of the deported Hamas members gained some of their most versatile and violent skills from training by terrorist groups in Lebanon.
State Attorney Shai Nitzan also took the unusual step of publicly parting ways with the current justice minister.
“Yes,” Nitzan stated, “we advise the government and our job is to defend its policies, even those we disagree with, as long as they are legal. But if a policy is illegal” the attorney-general must oppose the government policy “and the government is bound by the law as interpreted by the attorney-general.”
Rejecting the title of a later panel discussion as to whether the Attorney-General is government advocate or gatekeeper of the law, Nitzan said the attorney- general is “both.”
He also said that if the attorney- general vetoes an order or policy of a minister, that minister is bound to listen to him, implying that the gatekeeper role was essential as a guard against any government body wielding absolute authority – even the people’s elected representatives.
While Livni agreed with much of Nitzan’s critique, she did note that in truth “the attorney-general has no veto” and the “government has sometimes ignored” his advice, since he has no way to enforce his authority beyond public expectations that his counsel will be respected.
Still, Shaked was far from left alone, as former justice minister Daniel Friedman jumped to her defense and pounded the current set-up as overly empowering the attorney- general.
Friedman argued that the attorney-general and his staff are mere people with their own interests, like any other government employees, and listed a range of explicit errors he said those occupying the office have made over the years, including recent examples.
“Who is the gatekeeper for the gatekeeper?” he asked, when the attorney-general makes mistakes, and how can the attorney-general defend his own mistakes before the Supreme Court? Other panelists included Deputy Attorney-General for Legislative Affairs Dina Zilber, who accused those attacking the attorney-general of “demagoguery” and listed off a range of examples where recent governments ignored the attorney-general, leading to waste and embarrassing results – often with the controversial policy being vetoed by the Supreme Court.
On the flip side, former cabinet secretary Zvi Hauser railed at the Attorney-General’s Office for overly legalizing all government processes.
He told a story about a government project which was delayed unnecessarily for over a year to publicize it as a public offering and get several red-tape approvals, though the final result was the project was carried out by the same business that Hauser knew from the start was the only one qualified for it.
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