See our Shame: On an Indicted Prime Minister

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Significant challenges lie ahead. Three election cycles within less than a year have failed to produce a stable government in Israel. At the helm of the longest-serving caretaker government in the country’s history stands a Prime Minister who has been indicted for serious criminal offenses. It would have been appropriate for Benjamin Netanyahu to resign upon indictment, sparing the Israeli public one of the gravest tests of its democratic resilience. It would also have been appropriate for the Likud party to disavow his continued leadership once charges were filed. Regrettably, neither occurred. It is a stain on Israeli democracy that its Prime Minister stands accused of criminal wrongdoing—as the prophet Jeremiah lamented in the wake of national ruin: “Look and behold our disgrace.”

Professors Barak Medina, Ilan Saban, and Gila Stopler disagree with my view, which I published in Haaretz, arguing that an amendment to the Basic Law at this time, aimed at disqualifying Netanyahu from serving as Prime Minister, would amount to impermissible personal legislation. They maintain that the Basic Law: The Government can be amended to disqualify an indicted individual from holding the office of Prime Minister and that such an amendment could apply immediately to Netanyahu. In their view, the amendment does not alter existing law, is justified by binding case law, and does not constitute personal legislation. Moreover, they argue that under the present circumstances, such a measure is warranted—Netanyahu poses a threat to Israeli democracy in his current status as an indicted official.

In contrast, as I have argued in my article “Is Judicial Impeachment of the Israeli Prime Minister Constitutional?”, the Knesset, acting as a constituent authority, made a conscious choice—twice, a decade apart—when enacting the Basic Law: The Government, not to require the resignation of a Prime Minister prior to a criminal conviction involving moral turpitude. Ironically, this decision was driven by a desire to protect the integrity of state institutions. Lawmakers feared the politicization of law enforcement prior to a conviction. The higher the office, the greater the temptation to abuse the legal process for political ends. The Knesset was well aware of the Court’s rulings mandating the impeachment of ministers and deputy ministers once indicted for serious crimes, to preserve public trust in government. It chose, based on that same rationale—public confidence—to adopt a different legal approach regarding the Prime Minister.

It is notable that, in 2005, Professors Amnon Rubinstein and Barak Medina themselves appeared to embrace an interpretation consistent with mine, before the current constitutional crisis emerged. In their legal treatise, they write that if an indictment is filed against a Prime Minister who chooses not to resign, any resulting challenge would remain within the realm of parliamentary or public critique, and it is unlikely that the Court would compel the Prime Minister’s resignation prior to conviction.

An amendment to the Basic Law at this moment in time—one that would prevent an indicted individual from serving as Prime Minister—would amount to personal legislation that violates the rule of law, insofar as it would apply to a person already under indictment. Under the principle of separation of powers, the role of the legislature is to enact general norms applicable to an indefinite public. Here, both the motive and the effect of the proposed amendment are to prevent a specific individual from holding office. Personal legislation is frequently disguised as a generally applicable normative rule. It rarely bears the title “Basic Law: Anti-So-and-So.” The primary protection for human rights does not lie in substantive legal norms alone, but in the structure and integrity of our institutions. Our rights are safeguarded because we elect legislators authorized to enact general laws that bind them as well. They are not authorized to legislate for the purpose of benefiting—or certainly, harming—a particular individual.

Even applying an amendment to the Basic Law only after the next Knesset elections does not resolve the fundamental flaw of personal legislation. Requiring new elections as a condition for the amendment’s entry into force is generally intended to prevent legislators from enacting laws under a conflict of interest for their own benefit. For example, Members of Knesset may not pass a law extending their own term if that law takes effect immediately. When the legislature enacts laws that affect its own status, it is appropriate for such laws to enter into force only after an election, in order to neutralize personal stakes. In this way, lawmakers are more likely to consider the public interest, without knowing whether they will personally benefit or suffer from the legislation. But new elections do not cure the defect of a law whose purpose and effect are to harm a specific individual. Legislation remains personal even if elections are held in the interim.

These are difficult days for Israeli democracy. One might argue that extraordinary measures are justified to remove from power a person under criminal indictment. One of the central mechanisms of "militant democracy"—if not the central one—is the disqualification of parties and candidates from entering government institutions in order to prevent the internal subversion of democracy. Yet even case law that broadly authorizes impeachment from office based on criminal suspicions carefully preserves the right to vote and be elected prior to conviction. Existing jurisprudence does not treat a criminal indictment as a threat to democracy sufficient to justify preemptive exclusion from electoral competition. It is worth recalling that non-democratic regimes often suppress opposition by accusing political actors—especially opposition leaders—of corruption. Absent explicit legislation to the contrary, the courts should continue to safeguard access to electoral processes until a criminal conviction is secured.

Israeli public law must reconsider its course. If Basic Law: The Government is to be reformed moving forward, it is necessary to examine how one becomes a candidate for Prime Minister in a parliamentary system. A candidate for Prime Minister is one who enjoys the support of a majority of the Members of Knesset to form a government. The Prime Minister must be a Member of Parliament and derives authority from parliamentary confidence. By contrast, ministers are not required to be MKs. Since the nineteenth century, it has been impossible to understand either presidential or parliamentary systems without appreciating the role of political parties. Parties select their leaders—those who may become Prime Minister. A central consideration for the public when voting is the identity of the party leader. In Israel, the courts have generally refrained from intervening in the internal democratic procedures of parties. Many parties hold no primaries, and some effectively exclude entire sectors of the population from running for office.

The most appropriate way to prevent an indicted individual from forming a government—without fundamentally altering the judiciary’s traditional non-interventionist stance toward internal party democracy—is to legislate, via the Basic Law, a general prohibition on indicted individuals running for Knesset. So far, the Knesset has declined to adopt such an approach. Such legislation would be general in nature if applied prospectively—only to those not yet under indictment—and would have to take effect in the next Knesset to avoid conflicts of interest. It certainly cannot be applied retroactively to prevent already-elected Members of Knesset from serving. Just as the courts cannot override the electoral mandate of an indicted MK, they cannot override the electoral mandate of a Prime Ministerial candidate.

Nor can the President of the State rescue us from the current constitutional crisis. The President's constitutional authority is limited to reflecting the results of the elections by identifying which candidate enjoys the support of a majority of Knesset members. The President does not possess discretionary power to appoint or impeach a Prime Minister. In borderline cases—where multiple candidates have a comparable likelihood of forming a government—the President may legitimately consider pending criminal charges when deciding whom to task first. Still, even then, the outcome may be that the indicted candidate is the only one able to secure the Knesset’s confidence. As the Basic Law stipulates: “A majority of the Members of Knesset may request the President, in writing, to assign the task of forming a government to a particular Member of Knesset who has agreed to the request in writing.” In such a case, “the President shall assign the task of forming a government to the specified Member of Knesset within two days.”

Therefore, while the presumption of innocence applies in criminal proceedings only, and not in matters of public office, this does not preclude the elected Prime Minister from serving based on the electorate’s will. In this respect as well, the status of a Prime Minister or candidate for Prime Minister is different from that of a minister. While the dismissal of a minister falls within the discretion of the Prime Minister, the Prime Minister’s mandate derives from the confidence of the Knesset, which itself derives from election results.

My disagreement with my colleagues ultimately concerns the question of how best to protect our democratic institutions and the guardians of our constitutional order. In my view, it is impermissible to override the will of the electorate between elections. One cannot retroactively change the rules of the game. Nor can we expect the Supreme Court, sitting as the High Court of Justice, to extract us from a political crisis when the Knesset, acting as a constituent authority, has chosen a different framework in Basic Law: The Government. The Court too is subject to institutional limitations, even if we have grown accustomed to thinking otherwise.

Precisely in this moment, it is essential to preserve public trust in the capacity of law enforcement institutions to act with objectivity and without political bias. We must avoid contributing to a constitutional dynamic that transforms the Supreme Court into a tool in the hands of either coalition or opposition forces in the struggle over political power in Israel.

Suggested Citation:

See our Shame: On an Indicted Prime Minister, ICON-S-IL Blog, March 2020.