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Remove Netanyahu right now on grounds of temporary incapacity

There's an unacceptable, extreme conflict of interest between Netanyahu the accused and Netanyahu, head of the executive branch
Prime Minister Benjamin Netanyahu (left) and then-cabinet secretary Avichai Mandelblit at a weekly cabinet meeting at the Prime Minister's Office, in Jerusalem on February 2, 2014. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu (left) and then-cabinet secretary Avichai Mandelblit at a weekly cabinet meeting at the Prime Minister's Office, in Jerusalem on February 2, 2014. (Yonatan Sindel/Flash90)

The public and legal discussions as to whether the Prime Minister should resign in the wake of the serious indictment against him, focus on Section 18 of the Basic Law: The Government, which stipulates that a Prime Minister who has been convicted of a crime with moral turpitude will be removed from office by a majority vote of the Knesset, or when a final verdict has been issued, after all appeals have been exhausted.

There are those who believe that this legal arrangement covers the issue in full and that as long as there has been no conviction, the Prime Minister cannot be forced to step down. Others hold that the past decisions issued by the Supreme Court, whereby mandatory dismissal from ministerial office in the wake of conviction for crimes with moral turpitude, refers only to the individual’s eligibility to serve in a ministerial post, should be applied to the Prime Minister.

In their view, in cases in which a serious indictment has been filed against a government minister, and his or her continuation in office would seriously undermine public trust, a decision to allow the minister to continue to serve would be unreasonable in the extreme. And some assert that even if Section 18 allows the Prime Minister to stay on, considerations of ethics or political wisdom dictate that he resign.

But is the focus on Section 18 appropriate? Section 16 of the same law lays out another relevant procedure: If the Prime Minister is temporarily incapable of performing his duties, he will be replaced by his deputy or by another minister. We may recall that this provision for temporary incapacity was invoked after Prime Minister Ariel Sharon suffered a stroke; but there is no reason to restrict the concept of incapacity to a medical situation. In fact, in 2008 the Supreme Court, ruling on a suit filed by the journalist Yoav Yitzhak against Prime Minister Ehud Olmert, stated that the Attorney General is authorized, in principle, to declare the Prime Minister to be incapacitated in an extreme situation in which his continuation in office would undermine the possibility of a proper criminal investigation against him. In that case, the Court ruled that such conditions did not exist. Attorney General Avichai Mandelblit’s statement last week that “at present, there are no grounds for a determination by the Attorney General that the Prime Minister is incapable of performing his duties” is based on the Olmert precedent.

But a comparison of the two cases casts doubt on Mandelblit’s conclusion that there are no legal grounds to demand that Netanyahu step aside “right now.” Unlike Olmert’s legal situation when the High Court issued its ruling a decade ago, Netanyahu is no longer a suspect, but rather – has been charged publicly. What is more, again in contrast to Olmert’s case, the crimes Netanyahu has been charged with were allegedly committed while he was serving as Prime Minister and connected to that office; hence his continued service leaves him precisely in the same position where the alleged offenses were committed.

Still, over and beyond all of these considerations, which relate primarily to the abuse of the public trust, there is another crucial point: the fact that the Prime Minister, directly from his seat as prime minister, as well as through his close circle of associates, is waging a campaign against the law enforcement agencies and against the witnesses testifying against him. This in and of itself – should lead to the conclusion that Netanyahu’s remaining in his post, undermines – and can be expected to continue to undermine – the possibility of a proper legal process in his case.

In the final analysis, the Prime Minister is subject to the rules of public law, and to the ban on acting under a conflict of interest. The conflict of interest between Netanyahu the accused and Netanyahu the head of the executive branch, who bears responsibility for the law-enforcement agencies, is extreme and exceptionally intense “right now.” This situation makes it impossible for the Prime Minister to perform his duties under the law, and requires that he announce his temporary incapacity or be compelled to do so. Later, as the legal process advances, the temporary incapacity could, if the conflict is not resolved, become permanent.

So the burning legal question is not whether the Prime Minister must resign. It is, rather, whether at this very moment, the Prime Minister must step down temporarily, and so, the Attorney General should review his position on the matter.

This conclusion is reinforced by the dynamic character of the conflict of interest, which is becoming ever more severe each day, because of the way in which the Prime Minister has chosen to rebut the charges against him, including his call to “investigate the investigators,” and his active support of a public demonstration against an alleged “coup” attempt by the law-enforcement authorities.

Without in any way making light of the importance of the ethical and practical arguments related to the Prime Minister’s continuation in office, the logical interpretation of Section 16 of the Basic Law: The Government, is that his current legal situation requires a declaration of incapacity.

Prof. Yuval Shany is Vice-President of the Israel Democracy Institute

About the Author
Professor Yuval Shany is a vice-president of Research at the Israel Democracy Institute, and a member of the Faculty of Law of the Hebrew University of Jerusalem.
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