The unprecedented indictment of a sitting Prime Minister and the stalemate in the political system have combined to create a constitutional crisis in Israel. Political tensions are high and many fear the risk of political violence. The country’s most prestigious think tank, the Israel Democracy Institute (“IDI”), said that there is no doubt that a sitting Prime Minister under the shadow of indictment harms the public’s trust in the country’s institutions and Israel’s character as a Jewish and democratic state. Moreover they said that public norms demand that the Prime Minister must resign. People who care about Israel have a responsibility to make their voices heard and stand up to any attempt to delegitimize the legal system. In particular the IDI noted that the decision raises questions about the President’s authority to grant the mandate to form a government to Netanyahu. Decisions about the political future of the Prime Minister should not be left only to the legal system. The President has some discretion and a key role to play in a solution. Rumors abound in Jerusalem that the President may veto Netanyahu being able to be asked to even form a government and/or pardon him before his trials even begin in a Nixon style deal that will spare the nation from a third election that is shaping up as an attack on the Justice system and the Supreme Court.
According to Yoav Dotan, Professor of Public Law at the Hebrew University of Jerusalem, the President is entitled to rely on a legal opinion of the Attorney General that Netanyahu is unfit to be asked to form a government and that such an opinion would be unlikely to be overturned by the Supreme Court. If the Prime Minister, Likud, Knesset, Attorney General and President can’t solve this problem quickly, which seems unlikely, then the Supreme Court will be asked to. How will it decide ?
There are actually two trials being conducted. One is the formal indictment against the Prime Minister for fraud, breach of trust and corruption. If he doesn’t step down because of these charges the matter will very likely end up in the Supreme Court. According to the existing legal principle of good character and public trust described below, Netanyahu will likely be forced by the Supreme Court to step down. The second trial is being waged by Netanyahu in the court of public opinion. Here his henchman attack and incite against the Justice System and what his supporters call a too powerful Attorney General and State Prosecutor and an overly activist Supreme Court. One cannot help but regret how far Netanyahu’s Likud has moved from Menachem Begins’s Likud and its respect for the rule of law and the independence of the Supreme Court as reflected in his often quoted remark that “in Jerusalem the Judges decide”.
Professor Dotan says that a majority of the public sees through the attempts to delegitimize the Supreme Court and Justice system. The Court’s decisions in the area of good character enjoy massive public support. The court appears to the public as an unbiased and brave combatant against governmental corruption. The decisions of the Court in this area highlight the unsatisfactory behavior and corruption of senior public servants and politicians and bolsters the image and power of the Court as a protector of the public’s rights, and against the abuses of power by its leaders.
Returning to a possible Sureme Court hearing concerning the indictment, Professor Dotan explains that the Supreme Court, in a series of decisions over nearly 30 years, has ended the tenures and/or stopped the appointment of ministers, senior bureaucrats and military officers and other public officials on the basis of the principles of good character and public trust. Early decisions of the Court were based on allegations of serious criminal offences by the appointees. The Court extended this to include cases in which the candidate’s behavior was viewed as morally reprehensible even if not strictly criminal such as sexual harassment and discrimination. In a number of more recent cases, senior appointments in the IDF were challenged before the Court on the basis of expressions made by the candidate in the media, which the petitioners found to be offensive to the ideals of human rights or to other fundamental constitutional rights. While most of these petitions ultimately failed, in all of them the Court reiterated its role in ensuring that senior appointees meet its requirements for high moral standards in the public service. In 2011, leading candidates for the three top positions of IDF Chief of Staff, Chief Commissioner of Police and Chief Commissioner of the Prison Service were forced to withdraw their candidacy after allegations of financial or sexual misbehavior were published in the media, and after the AG announced that he would find it difficult to defend these appointments in Court.
Professor Dotan says that three cases in particular bode very badly for Netanyahu. In the Eisenberg case (1992), the Court ruled that a former senior member of the domestic security services (Yossi Ginosar), who had been implicated in the cover up and killing of 2 terrorists after their capture, and had been pardoned before trial by the President, could not be appointed to the position of General Manager of the Housing Ministry because his past tarnished his good character. Here it was the new appointment that was denied thereby supporting the legal argument that the President must refrain from appointing someone to try and form a government if their good character has been tarnished by an indictment for serious criminal offence involving moral turpitude. If Netanyahu was to be pardoned before his trials this law may also preclude him from being able to seek higher office in the future.
Dotan explains that in the Deri case (1993), the Court ruled that Prime Minister Rabin was obliged to fire the then Housing Minister Aryeh Deri after he was indicted for corruption. The Court held that a Minister indicted for a serious criminal offence involving moral turpitude breached the requirement of good character and public trust. Since 1993 this has been the law for Ministers who are indicted and is the precedent most likely to result in Netanyahu stepping down. Interestingly, the defense in the Deri case argued, just as Netanyahu will, that there was/is a written law that says the Minister doesn’t have to step down until his trials are completed. Dotan says the Court in the Deri case had no qualms about subordinating the express written law to the overriding principle of good character and the importance of public trust. At the very least public trust demands that a person indicted for a serious crime cannot assume the highest office in the Land.
The third case with relevance is that of the three mayors of prominent cities (Rochberger, 2013). Less than one month before municipal elections, the AG announced that he intended to indict them for corruption. Mayors are elected in direct personal elections but the Court said that the Representative Democracy argument, which Netanyahu will also argue, did not constitute a good enough reason for the Court to exempt the mayors from the application of the good character doctrine. The court did not have the power to stop the mayors from running in an election but the indictment could still prevent the new appointment of an elected official after the election should they win.
Dotan argues that these laws when applied to the Prime Minister amount to impeachment. Impeachment is old English Common Law from the 1300’s that allowed the Parliament to accuse the Kings Ministers of serious crimes and remove them from office and jail them. At the time Parliament was trying to assert and take power from the King who was still all powerful. Impeachment was a way of challenging the King’s authority. The House of Lords (the Parliamentary upper chamber in United Kingdom) sitting as a court, would try and punish the accused. The practice was challenged by King’s and Queens who would fight back by not calling up the Parliament. Ministers could only be impeached if parliament sat. After the English Parliament triumphed over the King the practice died out but was revived in the US Constitution where it was regarded as an integral part of the separation of powers and checks and balances between the US President, Congress and the Supreme Court. Historically impeachment has led to more accountability and greater transparency.
Some argue that the Supreme Court of Israel has usurped power from the Legislature and has gone beyond its exclusive mandate to interpret the laws made by the Knesset. However, from its inception under the British, the Court was given a very broad jurisdiction to hear and determine matters “necessary to be decided for the administration of justice”. Courts were instructed to apply English Common Law and Principles of Equity when faced with problems not solved by Ottoman law or by new legislation. The filling the gap “Lacuna” concept encouraged comparative judicial creativity and scholarship in the best traditions of Anglo-American Common law. In 1980, when all links to the English Common Law were formally abolished a new, unique and distinct Israeli type Common Law was born. The Foundation Law Act (1980) said that in the case of a question not answered by legislation, precedent or analogy, the court is called upon to apply “the principles of freedom, justice, equity and peace as envisaged by Israel’s heritage”.
The potential dismissal of Prime Minister Benyamin Netanyahu by the Supreme Court of Israel is the culmination of decades of legislative neglect to raise the ethical standards of political leaders in Israel. Even after the convictions of former Prime Minister Olmert and President Moshe Katsav, and a long list of other senior politicians for criminal offences, the Knesset failed to act or follow the recommendations of the Shamgar Committee (2008). The committee prepared a code of ethics for Ministers intended to nurture appropriate conduct by cabinet members, who are the public’s trustees, in order to promote the general welfare, transparency and good government. The proposed code of ethics requires cabinet members to uphold, amongst other values, those of honesty, leadership, loyalty to the State’s values, and teamwork. The Knesset did nothing. It is within the context of this legislative apathy to raise leadership standards that the Supreme Court was forced to act because the Knesset did not. The Knesset’s inaction created a vacuum in which the Court developed a set of high ethical and professional standard for senior public servants and politicians intended to improve the quality of leadership and public trust of the citizens of Israel in the State and its institutions.
Should we expect anything less from our political leaders ? The Court is doing the right thing by setting high ethical standards for our leaders. The public has a right to demand this. The court has been given the authority to interpret the laws and this should be done in a way that fosters better leadership that respects good character and public trust. Setting high moral and ethical standards for our leaders is the foundation of good character, public trust and better governance in Israel.
The much wanted and needed unity government should commit to implementing the code of ethics for Ministers recommended by the Shamgar Committee (2008) immediately. Until then the Judges in Jerusalem will decide.
For a full discussion of the case law discussed see: Yoav Dotan, Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances, 19 Theoretical inquiries L. 705 (2018).