Sa’ar looks to split A-G role, with or without Knesset - analysis

Justice Minister Gideon Sa’ar may be able to fulfill his dream of splitting the powers of the Attorney-General without a new Knesset law.

New Hope leader Gideon Sa'ar. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
New Hope leader Gideon Sa'ar.
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

Four of the five members of the powerful selection committee who will pick the candidate to be the next Attorney-General were named late on Wednesday.

Current Attorney-General Avihai Mandelblit will end his tenure on February 1 and the committee, which is likely to mostly include conservative-minded members, led by former chief justice Asher Grunis, New Hope MK Zvi Hauser, an academic, and probably a conservative former justice minister, will make the new appointment.

Israel Bar Association representative Tami Ulman is not known as being particularly conservative and has battled to defend the judiciary from attacks by former justice minister Amir Ohana. But she and academic representative Ron Shapira will not be able to sway a conservative majority.

The overall thrust of the committee will be heavily conservative so that Justice Minister Gideon Sa’ar may be able to fulfill his dream of splitting the powers of the Attorney-General among two different figures – one a chief prosecutor and one a chief legal adviser – even without a new Knesset law.

This is not what Sa’ar is pitching publicly, however.

 Attorney General Avichai Mandelblit. He is something of a weather vane for the new government.  (credit: TOMER NEUBERG/FLASH90) Attorney General Avichai Mandelblit. He is something of a weather vane for the new government. (credit: TOMER NEUBERG/FLASH90)

Publicly, he is arguing that splitting the Attorney-General’s powers into two separate roles among two individuals is part of the coalition deal and that he will succeed in passing a Knesset law to do so. But under detailed questioning in an interview in early October, he acknowledged that his deal is with Yesh Atid. It does not necessarily bind Labor, Meretz, Raam or other coalition partners who might oppose splitting the Attorney-General’s role.

Sa’ar also acknowledged that he will select the next attorney-general and the impending budget will pass before any role splitting takes place.

This means that his two main points of leverage where he could have held up government business which impacts the other political parties, will be gone before he even starts to try to get what he wants on the issue.

It’s not a strong negotiating stance.

Ra'am, for example, has received a number of concessions by the coalition before they agreed to support the budget.

Everyone knows that getting pet priorities through after the budget is passed will be much more difficult.

In the fastest scenario, Sa’ar may get a law passed in mid to late spring next year, several months after the new attorney-general has been installed.

So why is Sa’ar so outwardly confident about getting what he wants?

What if he has set up a committee that picks a new attorney-general based on a candidate who supports splitting the role? What if he ratified the role of Amit Aisman as chief prosecutor some months ago, telling him that he would eventually get to act independently from a future Attorney-General.

In that case, even if the Knesset could not pass a bill dividing the attorney-general’s powers, Sa’ar might be able to win simply by having his new attorney-general decide to avoid overseeing Aisman.

If Aisman would not need to check any prosecution decisions with the new attorney-general, then essentially the role would be split, even if formally the attorney-general still had certain powers.

There is nothing theoretical about this when it comes to some of the candidates.

Deputy Attorney-General Raz Nizri is in favor of splitting the attorney-general role that he will likely compete for alongside others.

The list of candidates for vacant Supreme Court justice positions includes many who could certainly agree with splitting the attorney-general's powers and there are often a few candidates for both the attorney-general and the Supreme Court.

Indeed, in the interview earlier this month, Sa’ar said clearly that he was unlikely to pick a candidate for attorney-general who would oppose splitting the role.

Of course, Sa’ar may still succeed at getting the Knesset to authorize the split.

Some of the coalition’s liberal parties may allow the change to go through as a trade-off for something else that is high on their list of priorities, or if certain safeguards are included.

Alternatively, liberal parts of the coalition may vote against the change, but it might pass with the support of the opposition, which by and large strongly supports the change in principle if it can get over its non-cooperation with anything the coalition does.

But it is looking like Sa’ar’s committee is starting to position itself to put someone into the role who could carry out the justice minister’s wish – with or without a new Knesset law.