Knesset passes first reading of controversial bill to split attorney-general's role - explainer

But the proposal, which passed in its first reading early on Tuesday morning by a vote of 65-47, does more than divide one job into two. It would reshape the relationship between the government, its legal advisers, the prosecution, and the courts.

That is why the bill is not only about who prosecutes criminal cases. It is also about whether the government’s legal adviser remains an independent gatekeeper whose legal opinions bind the executive branch, or becomes an adviser whose position the government can set aside.

Supporters of the bill argue that the current model concentrates too much power in one unelected official. They also point to a built-in tension: The same official who advises ministers may also oversee criminal proceedings against them.

Rothman put the argument sharply at the Israel Bar Association conference in Eilat this week.

“If we are a country in which governing power is effectively in the hands of the attorney-general, then splitting the attorney-general’s role is a necessary step to return power to the people,” Rothman said. “The question is whether we really want all governing power concentrated in the hands of a figure who is not elected by the public.”

Critics do not deny that the Israeli model is unusual, or that a serious discussion could be had about splitting the role. Their argument is that this bill is not the subject of that discussion.

Prof. Barak Medina, a prominent Israeli legal scholar and former rector of the Hebrew University of Jerusalem, told The Jerusalem Post that dividing the attorney-general’s powers could be justified in principle, but only after a professional, nonpartisan process.

“This is an issue that is so central to the Israeli legal system that it must be based on a thorough discussion by a professional committee,” Medina said, adding that such a change should win broad political support and apply only to a future government.

Instead, he said, the current proposal is being advanced rapidly, without the backing of the professional civil service and amid a broader confrontation between the government and the legal system.

The government has repeatedly clashed with Attorney-General Gali Baharav-Miara, whom ministers accuse of blocking policy.

Critics point to the coalition as trying to remove or weaken the official responsible for telling it when its actions cross legal lines.

The bill also comes against the backdrop of Prime Minister Benjamin Netanyahu’s ongoing criminal trial. Netanyahu is barred from involvement in matters that create a conflict of interest with his trial. Opponents allege that one possible effect of the bill could be to alter the legal structure around the prosecution system while the trial is ongoing. The coalition rejects the claim that the bill is designed around Netanyahu’s personal legal interests.

Under the proposal, the two new offices would be appointed differently.

The attorney-general (the government’s chief legal adviser) would be appointed by the government on the recommendation of the prime minister and justice minister. That official’s term would be tied to the term of the government that appointed them.

The prosecutor-general would be appointed by the government from candidates recommended by a public committee, for a six-year term. The bill states that the prosecutor-general would be independent in criminal matters and subject only to the law.

But critics have focused less on the formal split itself and more on what the bill does to the attorney-general’s current authority.

Today, the attorney-general’s legal opinions are generally treated as binding on the executive branch unless a court rules otherwise. Under the bill, the government could decide that a particular legal opinion does not reflect the law and exempt executive bodies from treating it as binding.

That provision is the heart of the bill.

For Medina, this is where the proposal moves from splitting the role to weakening it. The attorney-general currently functions as the government’s internal legal gatekeeper, he said – the official who determines what the executive branch may legally do before the matter reaches court.

“The entire issue is that this function of the attorney-general as a gatekeeper, as someone who is essential for the protection of the rule of law, will be lost,” Medina said. “This is someone that will check the government, and the court cannot do that by itself.”

Supporters argue that courts, not legal advisers, should have the final word on legality. If a government action is unlawful, they say, petitioners can challenge it in court.

Medina said that this view misunderstands how illegality is usually prevented.

“In practice, the court deals with just the tip of the iceberg,” he said. “Most of the functions of protecting the rule of law are done internally by legal advisers within the government.” Relying only on courts, he said, would be ineffective and impractical, especially when decisions must be made quickly, or unlawful action could cause irreversible damage.

Deputy Attorney-General Gil Limon made a similar argument at the Eilat conference.

“On the day after this bill passes, we will lose an essential protective envelope for democracy,” Limon said. “Today, the state’s first line of defense is the attorney-general, under whom the legal advisers in government ministries operate. Once these roles become political, all the systems beneath them will be harmed.”

The bill would also change how the state is represented in court. It provides that the attorney-general would present the state’s position in legal proceedings, but the authority to determine that position would lie with the government. If the attorney-general believes the government’s position cannot be presented, or if the relevant minister believes it will not be properly represented, the government could authorize another lawyer to present it.

Supporters say this would stop unelected legal advisers from overriding elected officials. Critics say it would allow the government to bypass independent legal review and present legally indefensible positions as the state's position.

Former attorney-general Yehuda Weinstein was blunt in his criticism.

“The judicial overhaul is a collapse of systems,” Weinstein said at the IBA conference. Rothman’s proposal to split the attorney-general’s role, he said, was “the elimination of the system as we have known it for 75 years.”

Weinstein said Netanyahu had opposed splitting the attorney-general’s role when he served as attorney-general, and argued that Netanyahu’s position had changed because of his indictment.

Medina said a split could theoretically be designed to preserve the rule of law. But the legal adviser to the government would need to remain professionally independent; legal opinions would need to remain binding unless the government went to court; and the prosecutor-general would need to be bound by the attorney-general’s interpretation of the law, so that the state does not speak in two contradictory legal voices.

Otherwise, he warned, the state could reach a situation in which the attorney-general tells a minister an action is legal, while the prosecutor-general later decides it is criminal.

“You need some coordination function,” Medina said. “The attorney-general nowadays serves in this position to coordinate the activities of all enforcement mechanisms.”

That is why critics consider the bill’s title to understate its significance. The immediate question is not only whether Israel should have one attorney-general or two. It is whether the government’s chief legal adviser remains independent enough to block unlawful action from within, or whether the main check on government legality shifts almost entirely to the courts.

The bill now returns to the Constitution Committee for preparation for its second and third readings. The coalition is expected to try to advance it quickly, amid uncertainty over the Knesset’s future and the possible dissolution of the current parliament.