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Just call him the untouchable. The president, that is. Because there is nothing anyone can do at this time, and for many months to come, to make President Moshe Katsav go away and wait quietly until Attorney-General Menahem Mazuz comes to a preliminary decision on whether or not to indict him.
Mazuz made that position clear in his response to a High Court petition filed by attorney Yossi Fuchs in which Fuchs asked the court to order the president to resign or at least suspend himself.
Mazuz told the court it was too early in the investigative process to demand that Katsav suspend himself on legal grounds. However, he continued, the president should do so out of consideration for public morale.
Although Mazuz did not say so in his reply, it is clear he believes the president is meant to be an untarnished symbol of all that is good, positive and harmonious in the country. It would be an understatement to say that Katsav no longer fulfills that role.
Nevertheless, it took many months for Mazuz to come out in public and express his opinion on what he thought Katsav should do. Indeed, he only did so because the High Court forced him to.
Mazuz's reluctance all these weeks was due to the fact that he knew his opinion did not have legal clout behind it. According to the Basic Law: President, no one can force the president to temporarily suspend himself, just as no one can prosecute the president or initiate any type of judicial procedure against him.
Katsav and his legal counsel are well aware of the law's provisions. They know, for example, that the law prohibits anyone from petitioning the High Court against the president, just as they know that no one can force him to suspend himself temporarily.
Although the law grants power to the Knesset over the president, it is only the power to dismiss him and it requires a majority of 90 MKs to do that.
Aside from this one power granted to an external institution, the president is a free man.
In his opinion to the High Court, Mazuz made some idle threats. He wrote that the law did indeed create circumstances in which the president had to resign. That time would come if and when the state prosecution made a preliminary decision to indict him, pending a hearing where Katsav and his lawyers would have one last chance to persuade Mazuz that he was innocent.
Despite his bravado, however, there is nothing in the law that enables Mazuz to enforce that opinion. The law does not grant him the power. The only institution that might interpret the law as Mazuz thinks it should be interpreted is the High Court of Justice, but the same law prevents anyone, including Mazuz, from petitioning it on a matter directly involving the president.
Katsav's lawyer, Zion Amir, has declared more than once that the president will resign if and when Mazuz makes a final decision to indict him, that is, after Mazuz has held a hearing for him. The difference between Mazuz and Amir is about six months. If Mazuz decides to indict Katsav pending a hearing, he will have to give the president's lawyers several months to study the evidence. During all of that time, Katsav will continue in office.
So does the above predicament mean that the president is above the law? Not exactly, for it is the law itself that grants Katsav such a large degree of immunity. It is the law that gives Katsav the power to ignore the sentiments of large parts of the nation he supposedly represents as well as the opinions of the attorney-general and the High Court of Justice.
How did this happen? It's very simple, says constitutional expert Dr. Suzie Navot, a lecturer at the Academic Campus of the College of Administration in Rishon Lezion. When the Basic Law: President was passed in 1964, no one dreamed that a president would be suspected of rape, committing indecent acts and sexual harassment. Had the legislators imagined such a thing, they would not have been so generous in the impunity they granted him.
Navot would like to see the Basic Law: President amended immediately in such a way as to pave the way for suspending Katsav as quickly as possible. But it's highly unlikely that the Knesset will pass such a law under the current circumstances.
So, once again, is Katsav above the law? Maybe, but if so, it's the law that put him there.
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