The much-criticized plea bargain that removed the rape charges from the indictment against former president Moshe Katsav has demonstrated once again the urgent need to reform the position of the state's attorney-general, according to Prof. Amnon Rubinstein, a former MK and cabinet minister and one of the architects of a proposed constitution for Israel.
Rubinstein noted a comparative analysis conducted by the Knesset's research institute, which contrasted the attorney-general's powers with those of the parallel position in 10 other democracies. The researchers, he said, found no state in which the attorney-general had such sweeping powers and so few constitutional checks.
"The problem is that the same person is head of the state prosecution and the government's attorney," he said. "I'm not jealous of the attorney-general, who must sit in cabinet meetings, offer his legal advice, and then prosecute the cabinet members. There has to be a division between these two functions."
Furthermore, noted Rubinstein, the government, as with any other institution, had the right to its own lawyer, independent of the prosecutor who would submit indictments of cabinet members.
Besides what he called the dangerous mixing of powers represented in the attorney-general's position, Rubinstein warned that, currently, the position is beholden to no external representative power.
"Both the attorney-general and the prosecutor-general" - currently the same person - "should be responsible to the Knesset," he said.
"Though their decisions should be free of political pressure, after they make their decision, the Knesset should be allowed to call them in to discuss the matter. Right now, we're in the very awkward position in which nobody dares to take parliamentary responsibility for decisions, which are discussed everywhere except in the Knesset."
Finally, Rubinstein protested the fact that there is no judicial process that oversees felony indictments filed by the attorney-general - allowing one individual, without oversight, to file an indictment against any civil servant or citizen.
"Now we're in a peculiar position in which the attorney-general and his representatives can indict any person without judicial examination, and can interfere in proceedings already started, such as closing a case or plea-bargaining, without judicial intervention," Rubinstein said.
"Israel used to have a committing magistrate, an [institution] taken from Britain, that is similar to a grand jury in America," he noted. But the Knesset abolished that judicial review of the indictment process in the 1950s in order to increase the efficiency of the system.
"When it comes to civil servants," he added, "this has a catastrophic effect. For dozens of indicted officials, they are very often given a leave of absence and lose half their salary, merely because of the state attorney's decision, without any recourse to judicial intervention.
"If we reinstate the committing magistrate," Rubinstein said, "at least we'll have a decision by an objective person saying there's prima facie evidence to convict a person."
Rubinstein also called for limits to the length of time investigations can be permitted to last, since State Prosecution investigations have been known to take as long as seven years, forcing those investigated to live under the cloud of suspicion, sometimes without an indictment ever being filed.
Is the Knesset sufficiently concerned with the issue to take action and redefine the attorney-generalship?
"If the government will be strong enough and the Knesset will lose its fear of having a say on judicial matters, why not?" Rubinstein said.
Even so, he said, these reforms "won't solve all problems."
"Human errors will occur in all systems. But it would minimize the dangers of gross mistakes, and it would minimize their impact."
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