Israeli Supreme Court Expected to Overturn Attorney General Split Law Amid Institutional Power Debate

The Israeli Knesset recently approved a law restructuring the powers of the Attorney General, reducing the binding nature of legal opinions and restoring broader government authority to determine its legal stance in court. The law also permits the government to use external legal representation if the Attorney General refuses to represent it. This reform separates the roles of the Attorney General, appointed by the government, and the State Attorney, selected by a professional committee, addressing concerns that no Western democracy concentrates advisory, legal interpretation, representation, and prosecution powers in one individual.

However, constitutional law expert Professor Moshe Cohen-Eliya warns that this split could create two powerful and independent legal authorities, potentially doubling institutional power rather than dispersing it. He traces the current system's origins to a 1993 Supreme Court ruling by Aharon Barak, which effectively made the government's legal position bound by the Attorney General's opinion, despite earlier committee recommendations to the contrary. Cohen-Eliya criticizes this judicial activism as creating a new regime without democratic or legislative foundation.

He predicts the Supreme Court will likely invalidate the new law, viewing it as a threat to the entrenched judicial power structure. The court has historically resisted shifts in the balance of power, often delaying decisions until political changes occur. Cohen-Eliya highlights the judiciary's entrenched view that political involvement in legal institutions equals politicization, while judicial control is framed as professionalism, a distinction he calls misleading.

The article also notes that the government cannot openly defy court rulings, as current officials like Gali Baharav-Miara enforce compliance strictly. Yet, Cohen-Eliya argues that after current judicial leaders leave office, deeper constitutional reforms are needed to redefine the powers of the Attorney General, State Attorney, and Supreme Court. He advocates transferring political authority from the Supreme Court to a constitutional court accountable to the people, warning that until then, laws remain conditional on the approval of an unelected judicial oligarchy.