Splitting the Bill Intended to Weaken the Role of the Attorney General

The latest proposal would undermine the binding force of the Attorney General’s legal opinions and abolish the AG's exclusive authority to decide whether to permit the government separate legal representation, removing two of the main tools that enable the institution to safeguard the rule of law.

Photo by Yonatan Sindel/Flash90

For months, the chair of the Knesset Constitution, Law and Justice Committee, MK Simcha Rothman, has been advancing a bill dubbed the “bill to split the role of the Attorney General.” In practice, this bill is intended to introduce far-reaching changes to the status and powers of the Attorney General compared with the current law. In recent days, the bill itself was split, and only part of it continues to be advanced. What is behind this move, and what does the bill now being advanced include?

The Roles of the Attorney General

The Attorney General in Israel has several main roles: heading the criminal prosecution system, representing the state in court, representing the public interest in court, and providing legal counsel to government authorities as the authorized interpreter of the law. The independent role of the institution of the Attorney General in protecting the rule of law in Israel is considered especially essential given the structure of the Israeli system of government, which is characterized by few mechanisms of checks and balances. For further details on these roles and their importance, see here.

What Is Currently Being Advanced as Part of the Split Bill?

The chair of the Constitution, Law and Justice Committee is now advancing, as part of the split bill, four key arrangements, among others:

1. Authorizing the government to disregard legal opinions of the Attorney General, except in the “exercise of powers in the field of criminal law” (although this field has not been defined) and in the exercise of powers specifically conferred on the Attorney General by law. This exemption applies to government ministries.
2. Revoking the Attorney General’s exclusive authority to present the state’s position in court.
3. Additional provisions that allow, among other things, oversight by the Minister of Justice over the Attorney General’s work.
4. A provision requiring the government to make a decision within 30 days of the law’s entry into force regarding the procedures and conditions for appointing the Attorney General. In this sense, the bill seeks to influence and induce a revision in the procedures for appointing and removing the Attorney General, which under the current arrangement requires the involvement of a professional-public committee.

Arrangements that were included in the broader bill approved in first reading (see below) including the splitting of the Attorney General’s role and the politicization of the procedures for appointment and removal from office, will not be advanced at this stage. However, the bill still attempts to enable changes to the appointment and removal procedures through the aforementioned provision requiring the government to make a decision on the matter within 30 days of the law’s entry into force.

What Are the Problems with the Bill?

The bill is intended to weaken the institution of the Attorney General in a manner that would impair its ability to fulfill its role within Israel’s system of government. The proposal undermines the binding force of the Attorney General’s legal opinions compared with the current law, and abolishes the Attorney General’s exclusive authority to decide whether to permit the government separate legal representation. It thus removes two of the main tools that enable the Attorney General to safeguard the rule of law. The government would even be able to prevent the Attorney General from presenting their position in court.

The provisions that allow close oversight by the Minister of Justice over the Attorney General, and the absence of a clear definition of the criminal sphere in which the Attorney General’s legal opinions would remain binding—for example, whether matters such as legal opinions on conflicts of interest, Shin Bet investigations, security matters, or administrative enforcement are excluded—could undermine the independence of the prosecution. The failure to exclude the field of elections from the arrangements that weaken the binding force of legal opinions and representation could also harm the integrity of elections.

Although the bill does not amend, in legislation, the procedures for appointing and removing the Attorney General, it seeks to influence them as well by requiring the next government—or the current government, should it continue to serve after the elections—to make an unreasonably swift decision on the procedures for appointment and removal.

In this way, the bill could undermine the independence of the law enforcement system, strengthen the government, and remove checks on its power in a manner that would destabilize Israeli democracy and its protection of the rule of law and human rights.

Would the Proposed Law Apply During the Upcoming Election Campaign?

Under the proposal, the law would enter into force on January 1, 2027, and therefore would not apply during the upcoming election campaign.

What Did the Bill Approved in First Reading Include?

In addition to the arrangements now being advanced, the bill approved in first reading included, among other things, the following arrangements:

• Splitting the role of the Attorney General into two separate officeholders: an Attorney General and a Prosecutor General for criminal matters;
• A clearly political appointment process for the Attorney General, with no mention of the professional-public search committee whose recommendation is required under the current arrangement, pursuant to a government decision, also for the dismissal of the Attorney General. Under the proposal, the threshold for dismissing the Attorney General would be very low, with no need for the recommendation of any professional-public committee;
• Defining a full overlap between the term of the Attorney General and the term of the government that appointed the Attorney General;
• The government would appoint one of the Deputy Attorneys General, with the consent of the Attorney General, as the official authorized to exercise powers in the area of representing the public interest before the courts.

What Is the Current Procedure for Splitting a Bill?

The committee chair succeeded in bringing about the splitting of the bill after it passed its first reading. This procedure is possible under section 84(b) of the Knesset Rules of Procedure, which allows a Knesset committee, with the approval of the Knesset plenum, to split a bill that has passed first reading into two or more bills, so that they are brought as separate bills for second and third readings.