Barring Netanyahu would violate fundamental rights

The law now being considered in Israel that would prohibit a prime minister under indictment from forming a government would violate core principles of legislation.

By ALAN DERSHOWITZ
Prime Minister Benjamin Netanyahu (photo credit: REUTERS)
Prime Minister Benjamin Netanyahu
(photo credit: REUTERS)
When the framers of the US Constitution met to draft what would become the most enduring document of liberty in the history of the world, they included only two fundamental rights in the body of the Constitution itself, leaving others to a bill of rights that would subsequently be enacted. The two foundational rights were the rights not to be subjected to bills of attainder or ex post facto laws. Bills of attainder were punitive laws directed at specific individuals rather than the people at large. Ex post facto laws punished individuals for conduct that was not unlawful at the time it was committed.
Why were these rights deemed so central as to be included in the body of the Constitution? Because they uniquely set limits on the powers of legislative bodies to enact laws governing all the citizens of a country. They mandate that no such laws may be directed at any specific individual. Instead laws must be generally applicable to all citizens, and their prohibitions must be limited to future conduct of which they have received adequate notice. Although technically limited to criminal cases , the fundamental principles and policies that underlie these rights are broadly applicable to all punitive or prohibitory legislation.
Put another way, prohibitions against bills of attainder and ex post facto laws are important structural limitations on the powers of legislatures to pass laws in a democratic society committed to the rule of law. Were legislatures empowered to enact bills of attainder, they could assume the role of prosecutors and judges and decide not only what conduct should be prohibited, but also which people should be prohibited from engaging in such conduct. If ex post facto laws were permitted, such laws would empower the legislature to prohibit conduct that was legal at the time it occurred, but prohibited only when committed by a targeted individual whose identity is already known. Both prohibitions are essential to democratic governance and to limiting the power of legislatures to their appropriate function: namely to enact laws of general future application and not apply them to specific targeted individuals.
The law now being considered in Israel that would prohibit a prime minister under indictment from forming a government would violate these core principles of legislation. No honest person will deny that this law is aimed specifically at Prime Minister Benjamin Netanyahu. It is designed to prevent him from trying to form a government following the recent election in which his party received the most votes and seats. It would change the law retroactively.
MOREOVER, AND equally important, it would eliminate the presumption of innocence. As courts and commentators repeatedly remind us, an indictment is no more than an accusation. It is very different from a conviction, which is based on a careful weighing of all the evidence and requires proof beyond a reasonable doubt. The presumption of innocence, which is central to the rule of law, continues after an indictment. Indeed, if anything, it becomes even more important at the trial itself. It only disappears upon conviction. That is why no duly elected public official should be deprived of his or her office based on an indictment alone.
Such a violation of the presumption of innocence would improperly empower prosecutors alone to decide who shall hold public office. The fact that legislation already exists depriving some officials of the right to hold some positions, does not make it right. In any event, the prime minister is different than other office holders, and depriving an indicted citizen of the right to seek the prime ministership is the most serious form of interference with democratic elections.
Imagine the reaction of those who voted for Netanyahu if he were to be precluded from trying to form a government based on a mere accusation, which then turned out, after a trial, to be unfounded. An acquittal would not give back to these citizens the years of his prime ministership of which they were deprived by an indictment that ended in an acquittal. It would undo the results of an election based on a one-sided presentation and a standard of evidence far lower than that required for a conviction.
There may be other reasons, political in nature, that deprive Netanyahu of the ability to try to form a government. These are part and parcel of Israel’s imperfect system of choosing its prime minister. But a legislative act specifically targeting Netanyahu and enacted after the election, but before he could try to form a government would violate core principles of democracy and the rule of law. All civil libertarians, regardless of how they voted, should be opposed to this anti-civil liberties legislation.
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