Dismissing the Attorney General
Against the backdrop of the proposed government decision that is meant to begin the process of dismissing the attorney general, this paper describes the procedure that has been laid down for this step, and explains why a decision by the Netanyahu government to fire the attorney general at the current time would be legally invalid.
Photo by Yonatan Sindel/Flash90
According to the law, “the government is entitled to determine the methods and conditions for the appointment of the attorney general.”[1] In the past, appointment and dismissal procedures were conducted only within the framework of the government. Thus, in terms of appointments, the government decided in the past that the candidate for the post would be proposed by the minister of justice, who would not put forward a candidate who was not qualified to be appointed a Supreme Court justice (and in addition, it was customary to conduct an informal consultation with the president of the Supreme Court).[2] Regarding the dismissal of the attorney general, because the government held the power to appoint this official, it also had the power to fire them.[3] And therefore, the government previously laid down that “the post of attorney general will be vacated in the event of death or resignation, or when the government appoints another person in their stead.”[4]
This legal situation changed over two decades ago. In 1997, the Minister of Justice Tzachi Hanegbi (in a government headed by Netanyahu) appointed the Shamgar Commission to examine the procedure for appointing the attorney general, along with other issues related to this office. The Commission was established in the wake of what was known as the Bar-On–Hebron affair, and it submitted its recommendations in November 1998. Consequently, the government changed the appointment procedures in 2000, as well as the procedures for removing the attorney general from office.[5]
According to the government resolution that was passed, the attorney general is appointed from a list of candidates proposed to the government by a permanent public-professional committee, comprising the following members: a retired Supreme Court justice (who chairs the committee, and who is appointed by the president of the Supreme Court, with the agreement of the minister of justice); a former minister of justice or former attorney general, appointed by the government; a member of Knesset, selected by the Knesset Constitution, Law and Justice Committee; an attorney selected by the National Council of the Israeli Bar Association; and an academic, elected by the deans of Israel’s law faculties.
The public-professional committee also serves a central role in the procedure for dismissing the attorney general. The government resolution states that the term of office of the attorney general is for a single period of six years. The government is authorized, in consultation with the public-professional committee, to terminate the service of the attorney general before completion of this term only if one of the criteria defined in the resolution is met, and in particular, if there are substantive and continuing differences of opinion between the government and the attorney general, creating a situation that prevents effective cooperation between them.[6] According to the government resolution, if one of the criteria is fulfilled, then the minister of justice refers the matter in writing to the committee, which then holds a consultation on the matter before bringing it to the government. The committee formulates its position after giving the attorney general an opportunity to present their case before the committee, and then submits its conclusions to the government in writing. The attorney general also has the right to present their case before the government, or before a ministerial committee appointed by the government for this purpose.
Figure 1: Main elements of the procedure to dismiss the attorney general
This dismissal procedure was put in place in order to protect the independence of the attorney general. As explained by the Shamgar Commission, in the report that served as the basis for the government resolution, allowing the government unlimited power to dismiss the attorney general “is liable to create a sense of dependency on the government on the part of the attorney general, which could result in their not meeting the required standard of defending the enforcement of the law and protecting the public interest when these do not find favor with the government.”[7] The Shamgar Commission proposed this dismissal procedure and explicitly defined the criteria for using it, in order to prevent the government from misusing its powers. As the Commission explained, “the accumulated weight of the committee’s expression of its opinion, the hearing, and the response of public opinion will be sufficiently influential factors so as to prevent use of the powers of ending the [attorney general’s] term of office in inappropriate circumstances.”
It is important to note that a prior condition for pursuing the dismissal procedure is the existence of the public-professional committee. According to the government resolution, this was to be a permanent committee, to which new members are appointed by those empowered to do so whenever a position on the committee becomes vacant. The government resolution stated that the person responsible for initiating these appointments by the relevant parties is the minister of justice.
As of the time of writing, the committee’s serving members are the retired Supreme Court justice Asher Grunis, Adv. Tamar Olman, and Prof. Ron Shapira.[8] Since the most recent Knesset elections and the formation of the government, replacements have not been appointed for the two committee posts that were thereby vacated—a former minister of justice or former attorney, to be appointed by the government; and a Knesset member, to be selected by the Knesset Constitution, Law and Justice Committee. As noted, the responsibility for initiating these appointments lies with the minister of justice. The entire procedure for dismissing the attorney general assumes the existence of a permanent committee, not a committee whose members are appointed ad hoc to examine a particular case.[9] Thus, even before any dismissal procedure has been launched, it already suffers from a substantive and significant flaw, due to the failure to appoint committee members at the appropriate time. It is unclear whether this flaw can be rectified by appointing members to the committee immediately prior to beginning the dismissal process.
Even assuming that the procedure described above is followed, and even if it does not suffer from some procedural flaw or other, another question presents itself: In the current situation, is the government entitled to dismiss the attorney general? This, given the very particular circumstances, relevant only to the current government, in which the head of the government has been indicted on criminal charges, and given the fact that the attorney general is also the head of the public prosecution system of the State of Israel. As such, she holds the ultimate power to make decisions in the prime minister’s court case, to delay proceedings, approve a plea bargain, and so on and so forth. In such a situation, is it at all possible for the government to dismiss the attorney general from her post?
There is a serious argument to be made that the prime minister himself is under a conflict of interest regarding the continued service of the attorney general, who is also the chief prosecutor responsible for his trial (this is reinforced by various reports that the prime minister is not involved in discussions regarding a possible dismissal). It should also be remembered that the court ruling on Netanyahu’s case made his serving as prime minister dependent on there being a conflict of interest arrangement in place.[12] The conflict of interest arrangement was drawn up by the attorney general[10] and its validity affirmed by the Supreme Court,[11] and it requires that the prime minister cannot be involved in issues relating to the judicial system and the law enforcement system: “Decisions relating to the system of law enforcement—restraint from involvement in appointments and appointment procedures of senior officials in the system of legal counsel to the government, in the Ministry of Justice, and in the Israel Police who deal with the criminal proceedings against the prime minister, or who are able to influence those proceedings, as well as in issues relating to the status of these figures and their performance of their duties.” Thus, it is clear that an extremely serious conflict of interest would apply if the prime minister were to participate in a decision to dismiss the attorney general.
The conflict of interest agreement states that it applies to every action by the prime minister made via any governmental or other actor (and regarding the appointments listed in the arrangement which require the prime minister’s approval, these appointments can be transferred for another minister to make).[13] The government’s ministers are dependent on the prime minister (he can dismiss them at any time), and of course the continued existence of the government is hugely dependent on the prime minister and his legal situation (for example, for him to sign a plea bargain could have an impact on the government remaining in power, could lead to new elections being held, and so on).
Under the current circumstances, in which the prime minister is on trial for serious criminal charges, and when there is no pressing need for the government’s dismissal and appointment powers to be used (as they would be, for example, if the attorney general had completed her term of office),[14] a government decision to dismiss the attorney general could represent a conflict of interest, even if the prime minister himself were seen not to participate in the specific meeting in question.
A government decision to dismiss the attorney general would be subject to judicial review by Israel's supreme court, like any other government decision, in accordance with the principles of administrative law. Among other things, the Court would be able to examine the government's discretion based on the standard grounds of administrative law, including reasonableness, extraneous considerations, and more.
Since the government’s decision would personally concern the attorney general, there may be grounds for separate legal representation for the government. As a rule, decisions on whether to permit separate representation for the government are made by the Attorney General. However, given that a petition of this nature would personally pertain to the Attorney General, the decision would be transferred to another authority, such as the State Attorney, who would be authorized to approve separate representation. In any case, the Attorney General would also be a respondent to such a petition and could be represented by the State Attorney’s Office.
[1] Section 5 of the Civil Service Law (appointments) 5719-1959.
[2] Government notice published in Reshumot YP 772, June 30, 1960.
[3] Section 14 of the Interpretation Law 5741-1981.
[4] Government notice YP 772. For example, Yitzhak Zamir was removed from his post in this way.
[5] “Notice on defining the methods and conditions for the appointment of the attorney general,” Reshumot YP 4894 5760; Resolution 1173 of the 31st Government of Israel, “Notice on defining the methods and conditions for the appointment of the attorney general—amendment to the government resolution,” June 10, 2007.
[6] Or alternatively, if the attorney general has engaged in behavior unbecoming their office, or is no longer fit to perform their duties, or is the subject of a criminal investigation, or has been indicted.
[7] The Public Commission to Examine the Procedure for Appointing the Attorney General and Subjects Related to Their Term of Office Headed by Meir Shamgar, Report (1998) (hereafter: the “Shamgar Report”).
[8] See: “Notice on the composition of the public-professional committee for proposing candidates for the attorney general,” Reshumot YP 5782, 1696.
[9] Compare with the Shamgar Report, 70.
[10] HCJ 2592/20 Movement for Quality Government in Israel v. Attorney General, May 6, 2020.
[11] Letter from the attorney general to the prime minister, November 2, 2020.
[12] HCJ 3056/20 Movement for Quality Government in Israel v. Attorney General, March 25, 2021.
[13] Letter from the attorney general to the prime minister, November 2, 2020.