Hayoetz Hamishpati Lamemshala
|Appointer||Cabinet of Israel|
|Term length||Six years, single term|
|Inaugural holder||Ya'akov Shimshon Shapira|
The Attorney General of Israel (Hebrew: , Ha-Yo'etz Ha-Mishpati La-Memshala, lit. Legal Advisor to the Government) heads the legal system of the executive branch and the public prosecution of the state. The Attorney General advises the government in legal matters, represents the state authorities in court, advises in the preparation of legal memoranda for the government in general and the Justice Minister in particular. Likewise s/he examines and advises upon private member bills in the Knesset.
Additionally, the Attorney General is tasked with protecting the rule of law and, as such, entrusted with protecting the public interest from possible harm by government authorities. It is an independent appointed position, one of the most important and influential in the Israeli democracy, and a central institution in the framework of the Israeli legal system. Owing to the common law tradition of the domestic legal system, the duties of the Attorney General are not codified in law and have been born out of precedent and tradition over the years.
The Attorney General has four main duties:
In 1997 a commission in the chairmanship of the former president of the Israeli supreme court, Meir Shamgar, had been established for examination of the possibilities of the future legislation on the subject of the attorney general, and recommended that the official title of his or her position will be changed from "the legal adviser to the government" to "the chief legal adviser" to reflect his responsibility for ensuring the rule of law in all of the arms of government, and not only as an adviser to the government itself in matters of law. Likewise the commission recommended that the adviser will be appointed by the government according to the recommendations of a public commission, that will include five members: a retired judge of the supreme court, a former justice minister or attorney general, a Knesset member who will be chosen by the Constitutional Affairs committee of the Knesset, an attorney who will be chosen by the national council of the Israel Bar Association, and a legal expert in the subjects of civil and criminal law who will be chosen by the heads of the university law schools in Israel -- in order to ensure the choosing of an appropriate person who possesses the fitting qualifications for the job. This recommendation regarding the selection committee was adopted in August 2000, but the recommendation regarding the title of the position was not adopted.
It is customary that the decision whom to select for the legal adviser position out of the list of nominees that the public commission recommended is done by the justice minister whose selection is brought to the approval of the government, which usually approves the appointment.
The manner in which the Attorney General carries out the duties assigned to his or her position is derived to a large extent from the personality of the person holding the position. Two of the legal advisers, Aharon Barak and Yitzhak Zamir, who came to the position from academia, were distinguished in the decisiveness that they demonstrated for the guarding of the rule of law in Israel, even when their ideas conflicted with those of the government.
Sometimes political interests, as opposed to the official attitude of respecting the independence of the position, led the government to fill the position of Attorney General with a person who is considered to be less independent and more amenable to special pleading from the government.
The most famous example was a scandal in the mid-1990s, relating to the appointment of Roni Bar-On as legal adviser to the government. There were suspicions that the appointment was part of a deal intended to provide leniency for Aryeh Deri in his corruption case. Those events were coined in the media as the "Bar-On Hebron affair". In light of this, the appointment of Bar-On as the legal adviser was not well received within the judicial community where many also thought him lacking the personality and legal acumen necessary for the job, all of which quickly led to the effective scotching of his appointment when he resigned only one day after taking the oath of office.
Other examples are the hurried replacement of Yitzhak Zamir with Yosef Harish in 1986, as Zamir was not willing to accede to the pardoning of those involved in the Kav 300 affair, and Michael Ben-Yair who was widely considered to be a political appointee of the second Rabin cabinet.
The drawbacks of the current situation are:
1. Undermining of democracy - the public's will to achieve its objectives through the representatives is thwarted.
2. Undermining of governability - legal advisers delay and stop processes and prevent the government from functioning.
3. Undermining the accountability of the government - the legal adviser precluding a governmental initiative does not carry any responsibility for the minister's failure to fulfill his office's objectives. The minister, on his part, can easily renounce responsibility, due to the legal intervention, both for the law and for any professional achievements.
4. Undermining the right to a fair trial - even the worst criminals deserves legal representation, in contrast, there is no one to represent the public and its elected delegates when the Attorney General presents his own position or presents their position halfheartedly.
|Ya'akov Shimshon Shapira||1948-1950|