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(photo credit: Ariel Jerozolimksi )
In his first response to a bill unveiled three weeks ago, Attorney-General Menahem Mazuz on Wednesday blasted legislation proposed by Justice Minister Daniel Friedmann to split the current duties of the office of attorney-general into two separate positions.
"The bill is a catastrophe," said Mazuz during a panel discussion at the Hebrew University in Jerusalem hosted by the Sacher Institute for Legislative Research and Comparative Law, which also included Friedmann and two legislators, Ophir Paz-Pines (Labor) and Gideon Sa'ar (Likud.)
"The bill seeks to create two weakened positions, both of which will be subordinated to the justice minister and the government. They will become government clerks without any real prerogatives, without the power to decide. The bill will have a clear orientation towards appointing as the legal adviser to the government someone who is close to [the government,] someone who 'thinks like us.'"
Friedmann introduced his bill on July 24 at a press conference at his Tel Aviv office together with retired lawyer Dan Avi-Yitzhak, who researched and drafted the bill.
According to the proposal, the two main duties of the current attorney-general, as legal adviser to the government and chief prosecutor, will be split into two separate positions.
The law also clearly restricts for the first time the advisory powers of the legal adviser, determines how the legal adviser and the chief prosecutor will be chosen and defines the relations between both officials and the justice minister. For example, both the legal adviser and the chief prosecutor will have to report periodically to the justice minister, who will determine the prosecutorial policy of the chief prosecutor.
Friedmann, who earlier in the discussion defended his bill, argued that there was a clear conflict of interest between the attorney-general's role of adviser to the government and his role as the man who determines whether to investigate and prosecute some of these very same ministers.
Mazuz distinguished between the concept of splitting the duties of the current attorney-general - which he also opposes - and the specific provisions of the bill.
"This is not a bill to split the duties of the attorney-general," he said. "It is a bill to smash the position of attorney-general and empty it of all content."
According to the bill, Mazuz continued, the new legal adviser to the government would be appointed by the government according to the recommendation of the justice minister. He pointed out that this was precisely the arrangement that led to the appointment of current Finance Minister Ronnie Bar-On, then a Likud activist, as attorney-general during the government of Binyamin Netanyahu. The scandal aroused by his appointment led to the creation of the Shamgar Committee, which recommended that an independent search committee headed by a retired justice propose the attorney-general. Friedmann's bill did not even prohibit the appointee from having a clear political affiliation, said Mazuz.
The bill also calls upon the legal adviser to "consult in general with the justice minister from time to time" and states that he will be instructed by the government on "general matters of law enforcement, the interests of the state, the public interest" and other topics.
Mazuz warned that these provisions turned the "legal adviser to the government into the justice minister's legal assistant."
Mazuz went on to say that the bill attacks the two fundamental components of the legal adviser's role. One had to do with the status of the legal advice he gives. According to Article 24 (5) of Friedmann's bill, the government does not have to consider the attorney-general's opinion as reflecting the legal situation "if it does not see fit to do so." In other words, if the attorney-general tells the government that a certain action it wishes to take is illegal, the government may ignore the opinion.
In his speech, Friedmann gave as an example a guideline handed down by Attorney-General Yitzhak Zamir to the effect that the president of the state could not grant a pardon to a suspect before he was convicted in court. When the government did so in the case of three senior Shin Bet (Israel Security Agency) agents after the 1983 Bus 300 affair and the matter was challenged in the High Court, the justices sided with the government. The court decision proved that Zamir's directive was baseless and should not have had the power to prevent the government from doing what it wanted.
But Mazuz said the opinions he gave regularly to the government and the ministers were not arbitrary ones. "When I give an opinion, I do not say that a certain action would not be a good idea. I say that it is illegal and quote the law on the matter." He added that Friedmann made it sound as if the attorney-general handed down incorrect legal interpretations all the time. But, he continued, the justice minister had to go back 25 years to find an example to back his position.
Mazuz warned that if the government did not have to abide by the opinion of the legal adviser to the government, no minister would have to abide by the legal opinion of the advisers in his ministry. The same would be true for local authorities. Ultimately, the whole structure of the rule of law would collapse, he warned.
He added that unless the opinion of the legal adviser was regarded as inviolable, no one would pay attention to it.
Furthermore, he continued, in many cases, the law was not clear about a given action. In these cases, the attorney-general and the government or minister sat down together to work out a course of action that could be defended in court if need be.
Mazuz also disputed Friedmann's claim that the new chief prosecutor would be more independent than the attorney-general is now because he could not be fired according to his bill. Mazuz pointed out that according to the bill, the chief prosecutor would be appointed by the government upon the recommendation of the justice minister from among candidates proposed by a public committee. The justice minister would appoint two members of the committee, including the chairman.
The only ones who could nominate candidates would be the prime minister, the justice minister, the head of the committee plus one other committee member or three committee members.
He added that in the case of the chief prosecutor, the bill also called on him to consult with the justice minister and to receive government directives on the policy to be pursued.
In principle, added Mazuz, he was ready to discuss the possibility of splitting the duties of the attorney-general. But he said it was unprecedented for a justice minister to "pull legislation out of his sleeve," without even consulting with ministry officials.
Friedmann commissioned Avi-Yitzhak to prepare the bill outside the aegis of the Justice Ministry.
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