Adalah Challenges the Attorney General’s Legal Authority to Grant Increased Powers to the Government-Appointed Committee of Examination


Yesterday, Adalah’s General Director, Advocate Hassan Jabareen, sent a letter to Attorney General Elyakim Rubenstein challenging the Attorney General’s legal authority to expand the powers of the government-appointed Committee of Examination.  Specifically, Adalah questioned the legal basis of the Attorney General’s decision to afford immunity from prosecution in criminal, civil and disciplinary proceedings to witnesses testifying before the Committee of Examination.  By law, Commissions of Inquiry are vested with this power.  The Attorney General’s decision seemingly granted powers to the Committee of Examination similar to those held by Commissions of Inquiry.  However, Adalah stated that the Attorney General’s decision might not withstand judicial review, as there is no provision of law giving the Attorney General the power to grant this authority to a Committee of Examination. 

On 22 October, Prime Minister Ehud Barak approved the establishment of a Committee of Examination to investigate “the clashes with the security forces in the state, in which Arabs and Jews were involved, since 29 September 2000.” The Prime Minister appointed five members to the Committee: Mr. Shalom Brenner (Chairman), Retired Deputy President of the Jerusalem District Court; Mr. Khalil Abboud, Retired President of the Nazareth Magistrate Court; Mr. Dan Shomron, Retired Chief of Staff, Israel Defense Forces (IDF); Professor Ehud Sprinzak, Dean of Government Studies, Interdisciplinary Center College; and Professor Gabriella Shalev, Faculty of Law, Hebrew University.  The Committee first convened last week, and thereafter published advertisements in the Hebrew and Arabic press calling on people to provide evidence and testimony to the Committee. The second meeting of the Examination Committee will be held on Thursday, November 9. 

The High Follow-up Committee on Arab Affairs, comprised of Arab Members of Knesset, Arab mayors and community leaders, vehemently opposes the establishment of the Committee of Examination, and seeks a legally sanctioned Commission of Inquiry.  Because of this demand by the Arab leadership, Attorney General Rubenstein granted expanded powers to the Committee of Examination, which were approved by the Minister of Justice, Dr. Yossi Beilin. In Adalah’s letter to the Attorney General, Mr. Jabareen makes the following points concerning a Commission of Inquiry, the government-appointed Committee of Examination, and the powers of the Attorney General: 

(1) The authority to establish an official Commission of Inquiry is given to the government, in accordance with the Commissions of Inquiry Law (1968).  The 1968 Law gives the Commission of Inquiry its special authorities including: 

its independence from the Executive Branch, as its members are appointed by the President of the Supreme        Court;  
its power to subpoena witnesses to testify before it and compel them to present relevant documents and other evidence; and  
the guarantee of immunity from criminal prosecution and civil liability to witnesses who testify before it.  These authorities are crucial and essential in order to find the truth. 

(2) The Examination Committee lacks, by definition, the power given to the Commission of Inquiry, according to the 1968 Law.  In your letter to Judge Shalom Brenner, Chairman of the Examination Committee, you state that as Attorney General, you will grant immunity from prosecution to all witnesses testifying before the Committee or gathering evidence for it in any criminal, civil or disciplinary proceeding. By stating that the Attorney General and its representatives would not use such evidence in any legal proceeding, you afford expanded powers to the Examination Committee, similar to the authorities held by a Commission of Inquiry. 

(3) There is no provision of law that gives the Attorney General the authority to grant powers to an Examination Committee. Moreover, the expanded power that you gave to the Examination Committee, concerning immunity from prosecution in disciplinary hearings, which particularly affects police officers, exceeds the authority of Section 14 of the Commissions of Inquiry Law.  Section 14 of the Law speaks only of criminal and civil proceedings. 

(4) Your commitment to refrain from using any evidence given by a witness before the Examination Committee in any criminal, civil or disciplinary proceeding, does not bar the use of such evidence by others.  For example, such evidence can still be used in civil cases by private individuals and in private criminal prosecutions.

(5) The Examination Committee, even after this delegation of power, cannot be the entity to investigate the police’s actions toward Arab citizens of Israel during the past few weeks. 

Under the circumstances, where 13 Palestinian citizens of Israel were shot dead and hundreds more were injured, we ask you to consider our position and respond accordingly to the Government.