Analysis: A step forward in fighting political corruption

In 2004 a directive was issued explicitly barring ministers from influencing civil service appointments.

By DAN IZENBERG
Hanegbi 311 (photo credit: Ariel Jerozolimski)
Hanegbi 311
(photo credit: Ariel Jerozolimski)
In 2004, then-attorney-general Menahem Mazuz issued a directive explicitly barring ministers from influencing civil service appointments and from responding to requests for civil service jobs in their ministries.
This document is regarded by many as a major turning point in the fight against political corruption.
But the majority ruling handed down on Tuesday by Jerusalem Magistrate’s Court judges Aryeh Romanov and Oded Shaham contends that the legal framework for determining that political appointments can constitute fraud and breach of trust, and that Knesset Foreign Affairs and Defense Committee chairman Tzahi Hanegbi was guilty of committing the crime, is based on the Supreme Court’s final ruling on Shimon Sheves.
Sheves was charged with fraud and breach of trust for granting favors to businessmen who either offered or gave him rewards.
Sheves was able to grant these favors because he was the director-general of the Prime Minister’s Office under Yitzhak Rabin.
In that ruling, a nine-person court headed by Aharon Barak sought to define what had been up to then (and according to some, still is) a highly vague and therefore problematic article in the Penal Law.
According to the law, “if a public servant – in the performance of his functions – commits fraud or breach of trust that affects the public, whether or not that fraud or breach of trust would have been an offense if committed against a private person, he is liable to three years in imprisonment.”
The problem is that the article does not define what constitutes fraud and breach of trust. That was what the Supreme Court tried to do in its second appeal ruling in the Sheves case.
On the basis of the Supreme Court’s legal interpretation of the term, Romanov and Shaham wrote on Tuesday that the charge of fraud and breach of trust is to be applied in a situation in which the public servants cause “substantial harm” to one or more of three values: the integrity of a public servant, public confidence in the civil service, and the obligation to protect the public interest.
The judges then determined that by their nature, political appointments could cause “substantial harm” to one or more of these values.
However, they added that this was not always true and that it depended on various factors and circumstances.
Thus, the question is whether Hanegbi’s political appointments in particular caused harm to these values. According to the judges, the facts in the case prove that they did.
For example, one of the variables that can determine whether political appointments constitute fraud and breach of trust is the number of appointments made – or, as the judges put it, “quantity makes quality.”
According to the indictment, Hanegbi was involved in more than 130 attempted appointments, including 69 that succeeded.
He also confirmed the systematic program he had introduced at the beginning of his term in office, when he issued directives to the manpower division to inform him of all job openings in the ministry.
He also did not deny that his close aide, Shmuel Hershkowitz (who, like Hanegbi, was acquitted of the fraud and breach of trust charges for reasons of justice), not only passed on the curriculum vitae of Likud job applicants to the manpower division, but closely monitored what happened to them afterward.
For all these reasons, Romanov and Shaham decided to convict Hanegbi. In doing so, they advanced the efforts of the police, the state prosecution and many other elements in society in their fight against corruption by a substantial degree.