Think About It: Sovereignty of the people and Netanyahu’s indictment

June 16, 2019 22:40
Think About It: Sovereignty of the people and Netanyahu’s indictment

Prime Minister Benjamin Netanyahu in the Knesset on the fateful night of May 29, when the Knesset dissolved itself and set September 17 as the date for new elections. (photo credit: MARC ISRAEL SELLEM)


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Sometime before the April elections MK David Amsalem (Likud), who was chairman of the coalition at the time, stated on television that if the attorney-general would decide to indict Prime Minister Benjamin Netanyahu, over a million people would go out to the streets in protest.

This was before parties representing 65 MKs recommended to the president that Netanyahu should be called upon to try to form Israel’s 35th government.

The main problem with Amsalem’s statement is that it sounded like a threat against the attorney-general.

Following the election, MK Miki Zohar (Likud), who is a leading candidate to replace Amsalem in the 22nd Knesset should Netanyahu form Israel’s next government, stated on television that since a majority of the people voted either for the Likud or for parties that recommended Netanyahu as prime minister to the president, and since all these voters were aware of what Netanyahu is accused of when they voted, he cannot be indicted since “sovereignty is in the hands of the people.”

Zohar’s statement is much more disturbing than Amsalem’s, especially since Zohar is a trained lawyer. While Amsalem merely suggested that the masses would revolt against a decision to indict Netanyahu, Zohar stated unequivocally that the majority should overrule a decision by the attorney-general, and subsequently a court ruling.

I do not know whether the Academic Center of Law and Business in Ramat Gan (from which Zohar received his law degree) fails to teach its students anything about the foundations of democracy, or whether he was simply absent from the relevant lecture. No matter who is to blame, Zohar’s conclusion regarding the sovereignty of the people is faulty on many counts.

First of all, the term “popular sovereignty” or “sovereignty of the people” indicates that it is the people who have the final say in government decisions, but certainly not that they can overrule the decisions of the judicial system or supersede it.

One of the foundations of a democracy is that there is separation between the executive branch and the judiciary, which must be completely independent and partial. Even though the executive branch is undoubtedly dependent on the wishes of the majority, the judiciary is not – even in a situation where there may be some popular dissatisfaction with it, and talk about a need for changes to it.
Secondly, the suggestion that “the people,” only a very small percentage of which has any sort of legal training, is capable of taking decisions which require a deep understanding of the law is preposterous.

Among the considerations that need to be taken in a decision on whether to indict a prime minister is the question of whether substantive immunity might apply (in which case indictment is impossible) or the question of inviolability (where indictment is possible) – i.e., whether the alleged offenses that the prime minister is suspected of having committed were committed within the framework of his performing his job or for the performance of his job. Another question that needs to be answered is whether there is sufficient evidence that the offenses of which the prime minister is accused were actually done. A third question is whether there are mitigating circumstances, in the event that it is found that relevant offenses were actually committed.

In the case of Netanyahu, those who claim that he should not be indicted can be divided into two groups.

One is made up of people who follow Netanyahu blindly and believe every word he utters. If Netanyahu says that “there is nothing,” they take his word for it literally.

But just as an accused person cannot determine whether there are any grounds for his indictment, so a mass of people who have nothing to base their opinion on, except for what the person they adore says, are in no position to express a relevant opinion.

The second group that calls for Netanyahu being exonerated without trial is also made up of people who adore him and believe that he is so great a leader that he ought to be considered above the law, unless he is accused of some heinous crime such as murder, robbery or rape.

This is objectionable, because in a democracy no one can be considered above the law, though members of Parliament – and in parliamentary democracies also ministers and prime ministers – enjoy substantive immunity, which prevents their being investigated or put on trial for things said or acts performed within the framework of the performance of their jobs. They also enjoy inviolability, which means that in cases of offenses that are not directly connected to the performance of their jobs, legal procedures are possible unless parliament decides to refuse to lift the suspected MP’s immunity or (as is the case in Israel today) decides to apply it. In all of Netanyahu’s cases, we are talking of inviolability, and so it is not the people who can decide whether immunity should be applied, but only the Knesset, which must have good reasons to do so.

To the best of my recollection, our new, temporary justice minister, Amir Ohana, has not argued that Netanyahu should not be put on trial because a majority of the people who voted for him in April – directly and indirectly – knew what the charges against him are. However, he is committed to getting Netanyahu off the hook by means of legislation. There are two pieces of legislation that have been mentioned: one will facilitate the application of Netanyahu’s inviolability, should the attorney-general decide to indict him following a hearing that is to take place on October 2-3, and the other is an override clause that will prevent the High Court of Justice from dealing with petitions designed to strike down a decision by the Knesset to apply Netanyahu’s inviolability, which will prevent his being put on trial for as long as he is a member of the Knesset.

OHANA IS unlikely to continue to serve as justice minister should Netanyahu form the next government after the September elections. The more likely candidate is Yariv Levin who, like Ohana, is known to support an extensive override clause that would weaken the High Court.

We do not know whether Netanyahu will end up forming Israel’s 35th government. If he does, the $64,000 question is whether the attorney-general will decide to indict him before he does so – the elections will be held on September 17 and Mandelblit will be able to decide to indict Netanyahu following his hearing on October 2-3 – or after, and whether the next justice minister will have enough time to apply all the necessary measures to try getting him off the hook in time.

If Netanyahu will not be called upon to form the next government, his indictment seems to be almost unavoidable, unless he will decide to reach a plea agreement with the State Attorney’s Office. Of course, there might be many more twists and turns before this whole saga is over, and as the saying goes, “It ain’t over till the fat lady sings.”

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