Israeli attorney general and legal advisers in the crosshairs of judicial reformers

(January 16, 2023 / JNS) The Netanyahu government’s plan to enact sweeping judicial reform has taken center stage in Israeli politics, prompting tens of thousands of opponents to take to the streets. On Monday, the Constitution, Law and Justice Committee will discuss a part of the plan that deals with the proper role of legal advisers to ministries, including the attorney general (the formal title of the position is “Government Legal Adviser”).

The bill heading to committee would allow ministers to choose whether or not to follow the views of legal advisers. “Legal advice given to the prime minister and any government minister shall not bind them,” the bill’s summary states. “The government, the prime minister and any government minister can reject legal advice and act against it.”

Introducing the “first stage” of his judicial reform plan on January 4, Justice Minister Yariv Levin stressed that legal advisers are “advisers, not decision-makers, who represent the government and not their personal positions.” He called for an end to the “subjugation of government to an unelected rank.”

They are bringing legal advisers back to earth, “making them understand that they are advisers, that they are not in control,” said Haran Fainstein, a retired Israeli judge who teaches in the Department of Criminology at Bar-Ilan University. JNS.

“There is no law that says that a government representative has to act in accordance with the wishes of their legal advisers. It was a Supreme Court decision years ago that made it mandatory. It was Shamgar who made the decision,” Fainstein said.

Meir Shamgar was a former Israeli Attorney General who later became Chief Justice. Journalist Evelyn Gordon explained in 1998 Azure magazine article titled “How the government attorney became its general” that the powers of the attorney general were of “recent vintage” and that Shamgar was responsible for changing the paradigm from being the attorney general a “government servant” to to be its “guardian”, first exercising his self-bequeathed powers in 1970 when, as attorney general, he refused to represent the government before the Supreme Court.

“Shamgar himself not only refused to appear, but said he would not allow any of his department’s lawyers (all of whom were on government payroll) to do so either,” Gordon wrote. Nearly 25 years later, the Supreme Court under Shamgar in a 1993 ruling decided: “The attorney general was not really the government’s legal adviser, but rather its legal arbiter.”

Said Fainstein: “The Supreme Court unjustifiably asserted, against the law, that when the attorney general says something, the government is bound by it.” The attorney general can not only refuse to represent the government, but he can also refuse to allow the government to seek outside counsel, he said. The most recent case took place this month, when Attorney General Gali Baharav-Miara refused to represent the government over whether Shas Party Chairman Aryeh Deri could serve as a minister, given his conviction for tax fraud. The first hearing in the case was on January 5.

Yonatan Green, executive director of the Israel Law & Liberty Forum, said JNS that the attorney general is an official of the Israeli system. “Here you have a situation where an official, whose job it is to represent the government, refuses to do so,” Green said.

In the Deri case, the government has representation because it was allowed to hire its own lawyer. “However, if she had wanted to, the attorney general could have decided that the government should not get any representation. That should be deeply objectionable to anyone with strong notions of procedural fairness, of executive discretion, of separation of powers in a democratic government,” said Green, a lawyer licensed in Israel and New York, who noted that he was offering his personal opinion. and not that of the Israel Law & Liberty Forum.

A private attorney is not the same as being represented by the attorney general’s office, he said. Private lawyers are unlikely to have the experience and resources of government lawyers, “whose job it is to represent the government before the Supreme Court and for whom administrative law and constitutional law are their bread and butter.

The real problem, Green said, “is what we can call a representative monopoly. The attorney general enjoys a monopoly on representing the government in court and judicial proceedings and in legal proceedings.”

Green added: “The attorney general offers advice and represents the government in court. The dual role creates an implicit threat. The attorney general doesn’t even have to say it, but it’s perfectly understood that if the government doesn’t accept his opinion, if the issue is contested in court, the attorney general could choose not to represent the government.”

Legal reformers call for splitting the attorney general post. The Religious Zionism Party proposed it in its legal reform program, announced shortly before national elections last November. They want it divided into three parts: 1. A legal adviser, who will provide non-binding advice to the government; 2. a prosecutor, who will represent the government in all criminal proceedings; and 3, a legal representative, who will represent the government in non-criminal or civil proceedings.

Fainstein advocates this approach. He said it’s important to divide criminal and civil charges because it’s rare for a lawyer to have experience in both. Attorney General Gali Baharav-Miara “has no experience in criminal cases, none at all. Some of his statements show that he doesn’t understand criminal law, which is nothing to be ashamed of. She is an expert in civil cases,” he noted.

“So they should split it into three. Number one will be the legal adviser. He will provide the legal opinion of him to the government. Number two is the one in charge of civil cases. Number three is someone who knows criminal law. He will be like the district attorney they have in the United States,” Fainstein said.

Green agreed that the position should be split, but he’s not sure it’s enough to prevent a monopoly.

“You still have the same problem. The government is essentially at the mercy of high-ranking public officials who obviously have their own loyalties, their own considerations, and their own decision-making mechanisms. I think the solution is that the attorney general, or anyone with the power to represent the government in court, should do it and do it to the best of their ability,” he said.

“If they don’t feel like they can represent the government well, either because they think they’re making a terrible legal argument, which lawyers sometimes have to do if they want to represent their clients, or if they feel like it somehow doesn’t square with their conscience, or with their morals and beliefs, they can leave the job. No one is forcing this person to be attorney general. It is not slave labor. They can resign and the government can hire someone else for the position, a person who is willing to represent the government,” Green said.

Fainstein said much the same thing.

“After 60 years, I cannot think of a single case in which a lawyer has not been able to present at least one good defense on behalf of his client. So personally my idea, not just mine, is if you can’t defend me, please go home.”