Next attorney general must lead, think independently
Op-ed: Curbing advisory activism would be tantamount to ripping out the core of the attorney general’s role. Should this kind of destructive step be taken, all the residents and citizens of Israel will suffer.
In the words of the 1998 Shamgar Commission that issued recommendations on the selection and function of the attorney general, "The attorney general assists government authorities, subject to the law. In doing so, he is guided by the law; any time the policy desired by authorities clashes with the provisions of the law, including with upholding basic constitutional principles, the law takes unequivocal priority.
"The attorney general protects the rule of law; his task is to provide government authorities with guidance regarding what is prohibited and what is permitted, what is legal and what is illegal."
However, according to media reports, Shaked told committee members the job of the attorney general is to "assist the government in implementing its policy," and added that it is appropriate to curb what she called the "advisory activism" of the attorney general.
Minister Shaked is correct that the attorney general’s role is to assist the government in implementing policy. But her assertion with regard to the way in which he must fulfill this role is mistaken in at least two ways.
First, it must be noted that when the attorney general assists the government in implementing policy, it is within the framework of the law. The attorney general’s supreme loyalty is to the law, not to the government.
Second, Minister Shaked's statement that recommends curbing the attorney general’s advisory activism is fundamentally misplaced. The attorney general’s title in Hebrew is "legal advisor to the government," therefore he is not merely a consultant who provides passive assistance to government authorities. The Israeli attorney general is a professional civil servant rather than a political office.
As noted above, he heads the State Prosecution, represents the State and the public interest in legal proceedings, and is the chief legal advisor of the government. In all these roles, the attorney general serves as a gatekeeper who defends the rule of law. He must enforce the law and preserve the state’s constitutional principles, including human rights and civil rights. To accomplish this, he must act independently and professionally while directing a large and multifaceted bureaucratic system.
Further, the attorney general must actively promote the rule of law. For example, he is required to offer legal advice on his own initiative. If he believes that government authorities are going to err in carrying out the law or are contemplating an act that could violate the law, he must offer legal advice on his own accord. In such situations, the attorney general’s advisory activism is not wrong; it is vital.
Advisory activism is also imperative because the attorney general must formulate the policy of the Prosecution, coordinate the activities of law-enforcement agencies, and manage in-depth legislative processes in the Justice Ministry.
Advisory activism is essential when the attorney general fights government corruption. It is necessary for combating governmental discrimination against the Arab minority, ensuring law is enforced in the West Bank, and guaranteeing the government upholds the rulings of the courts. Advisory activism and determination are crucial when warning the government that a bill it is promoting may infringe on human rights.
Like his/her predecessors, Israel's next attorney general will need leadership ability, organizational skills, independence of thought, integrity, determination and initiative. Above all, the attorney general will need to have the ability to hold on to his/her principles when assisting the government in implementing policy in accordance with the law and when working actively to promote the rule of law and to protect Israel’s constitutional principles.
Curbing advisory activism would be tantamount to ripping out the core of the attorney general’s role. Should this kind of destructive step be taken, all the residents and citizens of Israel will suffer.
Dr. Guy Lurie is a researcher at the Israel Democracy Institute.
