(photo credit: Courtesy)
A 2004 report by the State Comptroller’s Office indicating that MK Tzahi Hanegbi
had made improper political appointments in the Environmental Protection
Ministry led to a police investigation, and Hanegbi was put on trial in 2006 for
fraud, perjury and electoral bribery. This July he was convicted of perjury, and
his sentencing is imminent.
One of the key questions that the judges will
consider is whether the transgression involves moral turpitude.
the importance of the inherent moral judgment, the ruling will determine
Hanegbi’s future in politics. A person convicted of a crime of moral turpitude
is prevented from holding public office for three years.
Over the past
few days, the public has witnessed a bizarre spectacle of many of Hanegbi’s most
prominent political rivals writing effusive letters attesting to his character
and asking the court not to consider him guilty of moral turpitude, including
Prime Minister Binyamin Netanyahu and Defense Minister Ehud Barak.
other side, the Movement for Quality Government in Israel (MQGI) issued a
sharply worded statement criticizing the parade of supporters and urging the
court to acknowledge moral turpitude in Hanegbi’s crime, and it is circulating a
petition urging the same.
What is a character witness, and why should the
court pay attention to one? Is the testimony in this case judicially meaningful,
as Hanegbi’s supporters believe, or is it scurrilous as the MQGI asserts?
Character testimony can take various forms. At one extreme, it can be purely
judicial; when the facts are in dispute, knowledge about someone’s character may
be pertinent. If the court is trying to determine whether a person instigated
violence or was provoked, a flood of witnesses testifying to decades of fine
conduct on the part of the defendant could do much to resolve the
At the other extreme it can be purely for clemency. Sometimes
after a person has been convicted and sentenced, people will turn to the head of
state (in Israel, the president) and request a pardon. A pardon acknowledges
that the judicial system has done its job, but it invokes some extrajudicial
standard of clemency to justify overriding the judgment.
familiar situation for character testimony in Israel is between these extremes:
during sentencing, after the defendant has already been convicted. Judges
typically have broad discretion in sentencing, and the petitioners providing
character evidence evidently believe that their insights have a valid bearing on
the exercise of this discretion. That is where Hanegbi finds himself.
his case, the judges could go so far as to put him in prison (though the
prosecution is demanding only probation), or let him off with a mere fine. In
between looms the question of moral turpitude and its threat to his political
career. Here, too, there can be a legitimate role for character
Punishment for crime is justified on many grounds. Among the
most familiar are deterrence (making it expensive to commit crimes; this is by
far the most important), removal (keeping criminals off the streets),
retribution (“an eye for an eye”), and rehabilitation (this is mostly a factor
in juvenile sentencing; prisons have a tendency to be “crime colleges” and not
really a place to return to social usefulness). A person’s character could be
relevant for some of these, notably removal (the testimony shows the person is
not a continuing threat) or retribution (ameliorating circumstances may make
retribution inappropriate in some instances).
While character testimony
can in some cases be pertinent to sentencing, in my opinion the letters sent to
the court do not reflect this valid purpose.
The letters sent by both
Netanyahu and Barak emphasized Hanegbi’s talents as a lawmaker and the
contribution he could make to public life in Israel – which would be foregone if
his crime is one of moral turpitude.
This is generally, and properly,
considered an extrajudicial consideration. The letters did not imply that
Hanegbi is an honest person who did not mean to lie (repeatedly) before the
court; they did not imply that Hanegbi is unlikely to commit perjury in the
It is also disconcerting that our most prominent political
leaders are intervening in the case to assert that a convicted perjurer can make
some kind of unique contribution to public life in Israel.
Perjury is a
very severe offense that undermines the very basis of accountability in our
justice system. It is regrettable that leading politicians see fit to go out of
their way to seek leniency for a colleague who has been duly convicted of this
serious crime. It is equally regrettable that they seek to introduce extraneous
and even counterproductive considerations into a weighty judicial
decision.[email protected] Asher Meir is research director at the
Business Ethics Center of Jerusalem, an independent institute in the Jerusalem
College of Technology (Machon Lev).