Bad legislation: Avoiding criminal prosecution may not help Netanyahu

Netanyahu was indicted in January, and his trial is scheduled to begin March 17.

Israeli Prime Minister Benjamin Netanyahu speaks to the media at the Knesset, Israel's parliament, in Jerusalem (photo credit: RONEN ZVULUN/REUTERS)
Israeli Prime Minister Benjamin Netanyahu speaks to the media at the Knesset, Israel's parliament, in Jerusalem
(photo credit: RONEN ZVULUN/REUTERS)
In Israel, it is called the “French law,” a nickname for a version of a French piece of legislation that allows political leaders to avoid criminal prosecution while in office. Under that law, investigations into alleged crimes committed on the job by politicians are shelved until they lose an election or voluntarily decide to step down.
The problem is that for Prime Minister Benjamin Netanyahu, the version of the French law would not immediately help. France’s law gives a sitting head of state immunity from being indicted. It does not give retroactive immunity from an indictment that has already been filed.
Netanyahu was indicted in January, and his trial is scheduled to begin March 17, so he would need a bill stronger than the French law to retroactively cancel his indictment or prevent it from moving forward.
How would a stronger bill help Netanyahu? It would not only provide him with immunity retroactively, it would also need to somehow bypass the High Court of Justice, which most legal experts agree would not let such a controversial law stand.
Parties on the Right have been mum about what they will do in the event that Netanyahu succeeds in establishing a right-wing government and then tries to pass such legislation.
While Likud, Shas and United Torah Judaism seem to be supportive, Yamina appears to be split. Last Friday, senior Yamina MK Ayelet Shaked said the party would not immediately support such a bill to apply retroactively to Netanyahu.
“We are not aware of such a proposal, have not discussed it, and no one has talked to us about it,” she said at a cultural event in Givatayim. “We are not in favor of retroactive legislation. A law like this, if it happens, will not apply to Netanyahu.”
Defense Minister Naftali Bennett refused to rule out the possibility that he might support such a law, in an interview with The Jerusalem Post’s Jeremy Sharon and Anna Ahronheim.
“Generally, I am huge supporter of a French law,” he said using the Israeli term for the immunity law, citing legal entanglements of previous prime ministers as a reason to have such a statute.
“Specifically, in this case we’re talking about retroactive application. I would need to see the bill and then make a decision. I’m not going to make a decision now,” said Bennett.
On the other hand, fellow Yamina MK Ofir Sofer told the Srugim news site the party had not discussed the issue, adding that Shaked was “expressing her personal opinion.”
“The basic position is that a right-wing government will be led by Netanyahu with Yamina, which will be a totally right-wing government,” he said.
And Sarah Beck, who is No. 8 on Yamina’s list, also indicated she would be open to granting Netanyahu immunity.
“We need to examine this closely,” she told KAN Radio. “It could be that we have a French law. We have seen what the justice system does when sometimes there is selective enforcement.... We need to weigh this more thoroughly.”
A version of the French law could be good for Israel and help create more stable governance, especially when considering that since the 1990s, every prime minister has found himself under investigation. There was Ehud Barak, Ariel Sharon, Ehud Olmert and now there is Netanyahu.
If the crimes are of a financial nature, then they can wait to be investigated and tried, and allow a government to focus on what is important: advancing the nation and the people.
But passing a law that would apply retroactively to cases that are already pending in court would be dangerous for the rule of law in Israel, and we urge caution in advancing such legislation.
Doing so would not only endanger Israel’s democratic character but could lead to a complete flattening of our justice system, the independence of which is needed to uphold the values upon which the State of Israel was established in 1948.
Passing an immunity bill that works retroactively would basically be like the Knesset passing a law authorizing corruption. To do so after an indictment has been filed and after a court case has started should not be allowed.