Attorney General Gali Baharav-Miara who took office February 7 issued her first notable opinion on Sunday, in objection to Otzma Yehudit Chairman MK Itamar Ben Gvir’s Death Penalty for Terrorists Bill, co-sponsored by MK May Golan (Likud). The bill institutes a mandatory death penalty for anyone who murders an Israeli citizen out of a racist motive and an intent to harm the State of Israel (Ben Gvir to Submit Death Penalty to Terrorists by Electric Chair Bill).
The AG’s position is that the bill does not meet the constitutional tests, and there is a legal impediment to advancing it in the Legislative Ministerial Committee chaired by Justice Minister Gideon Sa’ar (New Hope).
Sa’ar initiated Baharav-Miara’s appointment ahead of several highly qualified candidates.
“The death penalty, due to its special characteristics, raises serious questions about the limits of the state’s authority to use it, as well as its usefulness, which distinguishes it from any other punishment on the books and justifies extreme caution and special protections in its determination,” the AG wrote.
“Our professional position is that the death penalty for the offense of murder should not be mandatory, and the death penalty should certainly not be a mandatory punishment.”
The opinion also raised concerns about an “irreversible punishment,” and suggested that “the death penalty is not a deterrence.”
The AG’s position cited representatives of security agencies who told the Knesset Constitution, Law and Justice Committee that MK Ben Gvir’s bill does not promote deterrence, and may even be harmful.
The military courts may issue the death penalty, and the new bill attempts to make their decision easier by requiring a regular majority of the judges’ panel, instead of the unanimous decision that’s currently required.
MK Ben Gvir responded: “With all due respect to the Attorney General, hers is a political and not a legal position, and it is unfortunate that Gali Baharav-Miara also takes the approach that the attorney general should become part of the political system. The death penalty is common in many countries around the world. It is possible to agree with this law or not, but it is certainly not possible to establish a decisive legal position on it.”
“By the way,” Ben Gvir added, “Only a few months ago, MK Amsalem (Likud) proposed a similar law, not to mention Avigdor Liberman when he was still a right-winger. Strangely, we did not hear the voice of the Justice Ministry back then. It’s a pity that instead of discussing the particulars of a bill with the understanding that jurists do not have the authority to intervene in this matter, political considerations penetrate legal positions––especially considerations that provide a backwind to terrorism.”