In recent days a fundamental divergence has emerged, usually hidden from the public eye, which is negatively impacting the legal system. After Justice Minister Ayelet Shaked instructed officials in the Attorney General's Office to stop speaking publicly against the government and its legislative initiatives, Attorney General Avichai Mendelblit responded in a letter saying he "rejects the fundamental approach" whereby the justice minister or the government can determine who represents their legal positions in the Knesset and in general.
According to Mendelblit's "fundamental view," he and his associates should determine the government and its representatives' legal positions in court, and in regard to criminal prosecution. The result is a centralized, distorted system that was shaped in the days of former Chief Justice Aharon Barak, by a small, unelected and non-transparent circle in the upper legal echelon and close confidants of Barak himself.
This system created an irresponsible amalgam of three separate legal utilities that harm the proper functioning of each and undermines the public trust. Instead of a "watchdog" for democracy, the legal system has become Cerberus, the multi-headed dog in Greek mythology that guards the gates of the underworld to prevent the dead from leaving.
The heads of this Cerberus are three functions currently crammed under the Attorney General's purview: The first is legal consultation pure and simple; in other words offering legal advice to the government on policy and legislative matters. The second is legally representing the government; in other words presenting its position in court, particularly when it is petitioned to act or desist (for example in the case of permitting American BDS activist Lara Alqasem to enter the country). The third is overseeing criminal prosecution; in other words pursuing criminal indictments on behalf of the state.
In actuality, for years now the Attorney General's Office has not legally advised the government. Instead, it issues dictates rooted in beliefs and opinions held by an informal circle of the clerical and legal elite. Essentially, the attorney general currently functions as a censor for government action on behalf of the High Court of Justice.
In the area of representation in court, the government's situation is even worse, because it cannot even argue for itself and is beholden to the whims of the Attorney General. Thus, for instance, former Attorney General Menachem Mazuz not only refused to represent the government's position in court over Jewish National Fund activities, he even forbade another Justice Ministry employee from doing so! According to Mazuz, Mendelblit and their cohort, that to which every citizen and organization in Israel is entitled – even the most reprehensible of sexual offenders and terrorists – the government is not.
In terms of responsibility for criminal prosecution, the current structure breeds unnecessary and unhealthy proximity between government ministers under investigation and the attorney general, who is ultimately responsible for deciding whether to indict them or not.
People are right to criticize the current state of affairs as unreasonable; but instead of their ridiculous demand to simply suspend ministers or the premier from their duties until a decision is made, indictments, like any other law enforcement issue, should be totally detached from the attorney general and transferred to an independent state attorney.
"Legal imperialism" is one name for Aharon Barak's approach of giving the courts unlimited authority and it is a fitting moniker for the attorney general's sphere of authority. Under these conditions, the government and its ministers forego true legal advice and representation and have to interact with the attorney general despite and separate from the investigations they are facing.
The solution is exceedingly simple – break it up.
First, any incoming government should be able to choose the legal adviser it sees fit. Second, the government should have complete freedom to choose who represents it in court – whether it be the attorney general, another state employee or even a private attorney with the proper expertise. And third, the State Attorney's Office will be completely separated from the attorney general, and will be headed by a state attorney who has no day-to-day contact with the government. We can only hope that the government and Knesset introduce changes in this spirit as soon as possible.
