The development of the role and authorities of Attorney General since 1948
The institution of Israeli Attorney General and his unquestionable power, which was developed during the time, is not fruit of somebody deliberated design of the political system in time of State in transition. The purpose was quite opposite: to create institution with restricted power and authority, subjected to control Minister of Justice from judicial, political, organizational and legal point. Lack of constitution, transition from Ishyv to the State, these factors served as a fertile ground to unexpected growth institution of Attorney General out from limits of parliamentary-democratic-cabinet system.
In old democracies as USA and Britain Attorney General is subject to political power. In USA he is also Minister of Justice, in Britain his post is subject to control from government and Minister of Justice. The Attorney General in Israel differs from role of the Attorney General in Britain. The authority to impose «Order of Law» exists in hands Minister of Justice, and to him subjected officials Ministry of Justice. So in Britain the authority of Attorney General subjected to Minister of Justice.
Only by a case, in second half of 1948, Jacob Shapiro, a junior partner in the coalition from unimportant small party, was appointed to posts of Minister of Justice and Attorney General. His main task was to deal with formulation of laws and reporting to the government his opinion on subjects. The authority of post Attorney General was still far away from operation of criminal law, independence of opinion and independence from minister of justice and Government.
Toviansky case was first sign of independence of Attorney General. His attitude was different, and expressed by his desire prosecute Yaser Bary to trial. Bary affair effected on creation of legal institution of the new state and designed typical character institution of Attorney General.
Since Convocation of Temporal Government and up to 60’s, the case Minister of Justice considered as unimportant, and was delivered to junior partner in coalition, Pinhas Rozen and on post Attorney General was appointed Haim Kohn, which not belonged to non of existing then parties. This happens because legal procedures had not important values in political system of Yishuv, since British role was understood as illegitimate, and accent was made on consensus. Moreover, rule of major party considered with general good.
Pinhas Rozen, Minister of Justice determined that only government itself can appoint Attorney General by recommendation from Minister of Justice and he specified the criterions of the post: serve as Attorney General can be why qualified to be a supreme judge.
Recommendation of Haim Kohn to prosecute M. Grinvald to trial is still subject to dispute, his recommendation to remove Knesset was not accepted and the attempt failed. He continued to inforce law without discrimination so it was understood that subject imposing of law not placed under political considerations. Also he gave up his immunity to judgment criticism, and was achieved that decision of Attorney General to prosecute somebody or not to trial is more important than decision of legislative branch. All these sorts of his activity added new power to institution of Attorney General.
Statehood patterns and Lavon affair had shown to Ben-Gurion and to the leaders, involved in that affair that judicial system also too important, and the post Minister of Justice and Attorney General are central posts in political system.
During the years 1948-62 debates was occurred in Knesset about «exaggerated» power and authorities of Attorney General. This fact can point out that institution of Attorney General was not absorbed well in political system until when.
The process of releasing institution of Attorney General from tight connection with Minister of Justice prepared ground for permanent conflict between two carriers of posts, since this order is opposite to regulate administrative orders and disrupts the hierarchical structure, which is a heart of bureaucratic system.
Appointment of commission in head judge Agranat in 1962, which established in purpose to release the government from the pressure which emerged as a result from conflict between Dan Yosef and Gideon Hauzner, became to boomerang, which hit the government, since Commission of Lawyers awarded to institution of Attorney General more powers than he have until then.
Commission determined that Attorney general is subject to control of government and Minister of justice, but that control should be limited, since government and Minister of Justice are not empowered dictate to Attorney General how he should act in specific cases.
Moshe Ben-Zev decided that residents of territories have a right to hand in petitions to the High Court of justice. This was decision of a political character. Meir Shamgar centralized actions and developed institution of Attorney General by publication of «Instructions of Attorney General». The followers of Shamgar, Ahron Barak, developed principle, that everybody can be prosecuted to trial, despite position in society (case Asher Yadlin, candidate to post of Director Bank Israel and case wife of P.M. then, Lea Rabin). Also A. Barak as Attorney General played a special role during the Israely-Egypet negotiations.
As a result from intervention of professor Izhak Zamir in G.S.S. affair in 1986, the legal position of Attorney General was put on question, and was created a new problem «Rule of Law» in political and judicial system of Israel. It was the beginning of massive process of restricting authorities of Attorney General, and the coalition government saw a dismissal of I. Zamir as a way on carrying out theirs purposes. In spite of attack on prestige of Attorney General, authorities and powers of post still remained, as they were in political and judicial system of Israel.
Bar-On affair (1997) pointed on fact, that despite Attorney General should be neutral and impartial, the procedure of his appointment by government and by recommendation Minister of Justice leaves a gate for misuse and manipulations. The recommendations found special commission for choosing the candidature of Attorney General is more optimal way to remove this deficiency.
Does it necessary to limit powers of Attorney General?
The split of authorities of Attorney General can be executed, since on one post Attorney General performs two different duties: as legal adviser of government and other political institutions; and as «Guardiance of Law» in state’s political system. His post was created for interpretation of law for government and legal advisement for Knesset. Therefore, his primarily task to advise. The process of advising in a high level requires considerable participation and time resource. Yet, Attorney General is a «Guardiance of Law» also participate in hearings on criminal law, its implementation and other procedurs. The successful realization of these two levels of his post is quite difficult. It would be reasonable if authorities of Attorney General in criminal law will be move to jurisdiction of State Attorney’s Office. Moreover, power of Attorney General to decide, in spite of criminal law, when was public interest damaged or not, creates possibility to manipulations.
But if his post would be split, it can be created another conflict, a new one, in addition to conflict between Minister of Justice and Attorney General: between legal advisor and an Attorney General in British sense. The «renewed» Attorney General could be not in course of happening events, if the role of legal advice would be imposed on another person. But the two planes of Attorney General authorities do not contradict each other, since he should be impartial. This option is an open opportunity, and probably it would not bring a real conflict between two possible posts.