Prime Minister under Investigation – A Guide for the Perplexed

The following guide represents the collective wisdom of the Israel Democracy Institute's scholars and explains the various possibilities and scenarios as Israel enters unchartered political waters.

By ISRAEL DEMOCRACY INSTITUTE
February 28, 2019 10:01
Prime Minister Benjamin Netanyahu speaks at a cabinet meeting, February 17th, 2019

Prime Minister Benjamin Netanyahu speaks at a cabinet meeting, February 17th, 2019. (photo credit: EMIL SALMAN/POOL)

 
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Introduction

The investigations into the conduct of Prime Minister Benjamin Netanyahu have led to a number of constitutional dilemmas regarding the next steps that should be taken if there is an indictment. Many of the questions that have arisen during these investigations are due to the unprecedented prospect of a current prime minister under indictment and the lack of a  recognized law on this matter. No matter the outcome, Israel's political and legal community should seize the moment and contemplate legislation to regulate this, so that the system is ready for possible future recurrences of a prime minister under investigation.

The following guide represents the collective wisdom of the Israel Democracy Institute's scholars and explains the various possibilities and scenarios as Israel enters uncharted political and legal waters.

Q. Is the Attorney-General obliged to announce whether he intends to indict the Prime Minister (pending a hearing) before the elections take place?

A. If the attorney-general is able to complete his examination of the cases in a reasonable time period ahead of the elections (several weeks), most legal experts argue that he is obligated to announce his decision because of the public's right to know. They argue that the same considerations that led the police to announce both the launch of the investigation and its results, should apply to the attorney-general's decision. Other legal experts are of the opinion that at this point, with elections weeks away, it would be best for the attorney-general to hold off on his decision, so as not to provide a sway over the public's vote. Even if a decision is announced after the election, it would be susceptible to criticism that the attorney-general was seeking to overturn the will of the voters through legal means.

Q. What about charges of influencing the elections?

A. Law enforcement agencies must be allowed to work independently and professionally to examine claims that the prime minister, or other officials, have committed crimes, and if so, bring to justice to those who have broken the law. The public also has the right to know if candidates for a public position may have committed a criminal offense. Publishing precise information is not considered an attempt to "influence the elections." At the same time, law enforcement agencies are obligated to do all they can to avoid influencing political processes, especially in the run-up to elections, and to follow the requirements. They must take this into account when deciding to investigate and publicizing their findings. This is why they should avoid announcing their decision at a date that is too close to the elections.

Q. What is the significance of a decision to indict pending a hearing?

A. A decision by the attorney-general to indict is not a final decision, and can be altered after a hearing. During the hearing, the accused is provided the opportunity to point out mistakes in the legal analysis, the evidence, or even raise new arguments in his or her defense.

Q. What is the significance of the hearing process?

A. Israeli law obligates a written or in-person hearing before a decision can be made to indict someone for an infringement of criminal law. In practice, exceptions are also made for elected officials, even if they are accused of less severe crimes. The hearing must take place within 30 days of an announcement to issue such an indictment, unless an extension is granted. An in-person hearing usually lasts only one session (although in the case of senior officials, two or three hearing sessions are normally held). In practice, when it comes to complex cases on the suspicion of a breach of trust, it usually takes several months between the announcement to indict and the actual hearing. According to data from the prosecutor's office, when an in-person hearing was held, 41% of the cases were eventually closed (49 out of 129 cases). However, it should be noted that when an assisting attorney from the prosecutor's office accompanied the police investigators – as was the case with Prime Minister Benjamin Netanyahu – then the chances of a case being closed after a hearing were greatly reduced.

Q. Can the Prime Minister stay in office if an indictment is issued, pending a hearing?

A. Since the decision to indict is not final until after the hearing, there is no legal requirement for the prime minister to step down if an indictment is issued. However, other considerations, such as public opinion or concern for public trust in the rule of law, may lead a public figure to decide to resign. An additional possibility exists in the Basic Law: The Government, in which the prime minister may declare that he is temporarily incapable of fulfilling his role, and steps aside for 100 days. However, this does not seem to be a practical option in this case. Based on previous cases, more than 100 days usually pass between the announcement of the intent to indict and the final decision by the attorney-general.

Q. Is there any reason why the prime minister could not run for election when a pre-indictment has been issued?

Prime Minister Benjamin Netanyahu is presumed innocent until proven otherwise, and there is no legal barrier preventing him from either running for office or from being elected.

But there is a political question as well. In the Israeli electoral system, following the parliamentary elections, the presidents choose a member of Knesset which he believes is most likely to succeed, and tasks him with forming a government. There is no legal barrier preventing the president from giving this task to Netanyahu after the elections. However, the law does not prevent the president from giving the task to another MK from Netanyahu's list, or to an MK from another party who has been recommended by the Knesset factions.

Q. What is the significance of Netanyahu continuing as prime minister if a final decision on an indictment is taken?

There is no legal precedent that requires a prime minister to resign if he is indicted, and there is also no explicit legal requirement forcing him to resign before all the legal processes have been completed. However, as in similar cases regarding accused ministers while in office, the public may question whether the decision for him to remain in office is a reasonable one under those circumstances. This question will mostly likely be decided upon by the High Court of Justice if Netanyahu is reelected, indicted and then refuses to resign.

Nevertheless, our legal experts believe that according to public norms, it is appropriate for any elected official who is indicted of serious crimes to resign from the government after a hearing. Having an indicted suspect at the top of the political pyramid could gravely harm the public's trust in the rule of the law. It would also create a serious conflict of interest for the prime minister, who is ultimately responsible for the Justice Ministry. Such a situation could also hamper the prime minister's ability to manage the affairs of state while simultaneously defending himself in court.

Q. Precedents from municipal elections?

During the recent municipal elections, the attorney-general's office adopted a policy of speeding up the examination of mayors and other officials in order to reach a decision of whether or not to indict them several weeks before local elections. It seems logical to apply this same policy to the Netanyahu's investigation.

A decision not to issue an indictment against a candidate would remove the cloud of suspicion hanging over him or her, allowing them to run for office unhindered by criminal allegations. A decision that an indictment is necessary may help voters reach an informed decision, taking into account whether the candidate in question is worthy of being elected and a possibility that they may not be able complete their term in office if elected.

Q. What about amending personal legislation specifically for the prime minister?

A. There should be no place in Israel for personal legislation that protects a specific individual from indictment. Such legislation stands in contradiction to the principles of the rule of law and equality before the law. But even a law that would grant any future prime minister immunity from prosecution for serious crimes would cause serious damage to the rule of the law. The "French Law," which is often cited as a precedent in Israel, is an exception to the democratic world. It is a law that may be appropriate for a presidential system, but not in a parliamentary one.

Given the controversy surrounding this case, and the enormous stakes involved, it is vital that we learn lessons from this affair and consider amendments to the existing Basic Laws in order to allow for the efficient investigation of future elected officials, who face credible allegations of criminal wrongdoing. These amendments may also include the establishment of an appropriate system of suspension or resignation during the investigation process.

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