Accountability: The Attorney General

Dr. Gad Barzilai of Tel Aviv University and Prof. David Nachmias, a senior fellow at the Israel Democracy Institute, have published, within the framework of a comprehensive study of the institutions of Attorney General, Governor of the Bank of Israel, and State Comptroller in Israel as well as other countries, the current study as part of the Institute's series of position papers. The first chapter of the study is concerned with the comparative aspect of the institution of legal counseling in Europe and in the United States. A methodical comparative analysis indicates that various characteristics of legal counseling, as well as methods of appointment to such positions, exist in different parts of the world. In the United States, for example, the Attorney General is also the Minister of Justice, and in Australia legal counseling is divided between among government offices. Despite the wide variety of legal advisory institutions, however, the study manages to focus the readers on several variables of particular significance. In most European countries, for example, an institutional separation exists between the State Attorney and legal counseling. The development of legal advisory institutions in democracies is explained by the historic developments within the modern nation state. These developments led to the evolution of legal advisory apparatuses which sanctioned the state's actions and failures.

The theoretical criteria for the discussion presented in the study are elucidated in the second chapter. Barzilai and Nachmias offer four standards for the discussion of legal counseling institutions and State Prosecution, explaining the relevance of each of those standards to the development of legal counseling:

1. Professional Independence in the Application of Discretion Maximum independence is theoretically required in relation to the ability of State Attorneys to remain loyal to democratic values and to combat political and governmental delinquency.
2. Transparency and Public Accountability In order to ensure transparency, accountability apparatuses must be developed, enabling public response to the nature of legal counseling and prosecution.
3. Representation and Appointment Methods The Attorney General must be accessible to various segments of the population, while maintaining the professionalism required by the position.
4. Governership and Effectiveness Public prominence will assist the advisory and prosecuting institutions to establish public awareness regarding their significance.

The study's third chapter concerns the historic development of the institution of the Attorney General in Israel. Barzilai and Nachmias refer to the reasons leading to the establishment of this institution in Israel, delineating its evolution. The degree of contribution provided by the institutions of Attorney General and State Attorney to democracy is examined within the context of changes which have occurred in political rule, in the party structure, and in political culture. The study shows how the growing distribution of Israeli political power, party polarization, and the influences of American culture on Israeli political culture have all affected the status of the Attorney General in Israel. The study also analyzes the reciprocal relationship between the Attorney General and governmental institutions, including the Supreme Court. The researchers' main finding is that the status of the Attorney General and of the State Attorney has weakened. Furthermore, the authors deduce that the institutions of Attorney General and of State Attorney do not follow criteria of professional autonomy, transparency, accountability, governership and representation.

The study's findings indicate that despite the extensive official power held by the institution of Attorney General, it is not subjugated to accountability regulations (for example, the Attorney General is not obliged to appear before the Knesset). Public transparency of the Attorney General is extremely limited, and it is doubtful to what extent the form of appointment of the Attorney General(by the government) facilitates any social or political representation. From a comparative perspective, the state of the institution of Attorney General is even worse than that existing in many other democracies, where a greater degree of separation exists between the State Attorney and political centers of power, as well as a greater degree of public supervision and public transparency.

The authors of the study recommend a series of original and substantial reforms. These include the need for a division between the institution of Attorney General and the State Attorney, whose interest lies in the implementation of the criminal code. The methods of appointment of the Attorney General require substantive reform, and the authors recommend a thorough change in the methods of appointment and impeachment. They assert that a certain degree of intervention by the Knesset in these procedures should be secured. An additional recommendation of significant importance is the termination of regular participation by the Attorney General in government meetings. It is the opinion of the authors that this participation may significantly damage the effectiveness of legal counseling.