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(photo credit: Ariel Jerozolimski)
Justice Minister Daniel Friedmann on Thursday revealed his bill to divide the authorities of the attorney-general (in Hebrew the title is actually "legal adviser to the government") into two positions - the legal adviser to the government and the attorney-general, who will serve as the country's chief prosecutor.
Friedmann said the legislation, if approved, would go into effect after Attorney-General Menahem Mazuz completed his term in office. The two men clashed recently over Friedmann's demand to appoint a government committee of examination to investigate the conduct of the police and the state prosecution in the Ramon wiretapping affair.
Friedmann said the bill was not aimed at Mazuz personally and that its preparation had begun a year ago. However, even before being appointed minister of justice in February 2007, Friedmann was critical of the state prosecution and accused it of indicting Haim Ramon on charges of committing an indecent act in order to oust him from his position as minister of justice.
"The attorney-general in Israel has the broadest powers of any attorney-general in the world," said attorney Dan Avi-Yitzhak, who drafted the legislation, during a press conference at Friedmann's Tel Aviv office. "Nothing compares to it. In most countries, there is a tendency to separate between the two functions. Here, the separation is the smallest."
According to Friedmann and Avi-Yitzhak, the attorney-general currently has four responsibilities. He is the chief prosecutor; represents the state in civil procedures against it; represents the public interest; and advises the government on the legal aspects of its policies and actions.
Friedmann and Avi-Yitzhak said there was a built-in contradiction between the attorney-general's current function as legal adviser to the government and his role as chief prosecutor.
"The situation in Israel proves that on many occasions, the attorney-general, in his capacity as chief prosecutor, must decide whether to order police investigations or file indictments against government officials, including ministers and prime ministers, with whom he was, or is, very close as a result of his other responsibilities," Friedmann wrote in his introduction to the bill. "In these circumstances, he is caught in a conflict of interests and his ability to serve as chief prosecutor is in doubt."
According to the bill, the attorney-general would continue to exercise three of the four current responsibilities. However, all his responsibilities for investigating and indicting suspects would be transferred to another official who would be independent of the attorney-general.
One of the key provisions in the bill would restrict the powers of the attorney-general in giving legal advice to the government. The question at stake is what weight should the attorney-general's opinion on the legality of government policy carry.
Friedmann and Ramon have been highly critical of the power that the opinion of whoever has held the post of attorney-general has allegedly come to wield in recent years. Not long ago, Ramon blasted Mazuz for ruling out the government's appointment of Ramle Mayor Yoel Lavie as director-general of the Israel Lands Administration because of harsh comments he made regarding the Arab residents of his town. Ramon said the government had been hijacked by unelected civil servants.
Friedmann has made similar comments. His bill makes it clear that the government would be able to act contrary to the legal opinion of the person filling the newly created post of legal adviser. "We cannot deny the power of the government and its ministers, who are responsible to the Knesset and the public for their actions, to make their decisions according to their own considerations and understanding of the law and, in appropriate circumstances, contradict or allow a contradiction of the opinion of the legal adviser to the government."
Friedmann added that laws can often be interpreted in more than one way and there have been cases when the government acted against the opinion of the attorney-general and the court backed the government. One of the most important examples of this was when then-attorney-general Yitzhak Zamir opposed the government's decision to grant a pardon to Shin Bet (Israel Security Agency) officials involved in 1984's Bus 300 affair before they were put on trial. The High Court of Justice upheld the government's decision.
After the press conference, Mazuz released a statement that had been prepared on February 27, 2007, by the then head of the Justice Ministry's Legislative Department, Yehoshua Schoffman. The statement came in response to a private member's bill that had also called for splitting the responsibilities of the attorney-general.
Schoffman wrote that the matter had been investigated by a committee of five senior judicial figures headed by retired Supreme Court president Meir Shamgar. "Their unanimous decision was that the attorney-general's functions should not be divided. It did not accept the argument that there was an internal contradiction between the various functions of the attorney-general that could not be suitably resolved or balanced."
However, Friedmann said much had changed since the Shamgar Committee published its report in 1997. "Since then, all four people who have held the position of prime minister have been investigated by police," he said. "How can things work this way? It isn't natural that the prime minister's adviser will also be his prosecutor."