A Prime Minister Under Criminal Investigation

A summary of where the law stands regarding alleged wrong doing by the premier, as well as timely suggestions for reform, are in order.

Prime Minister Benjamin Netanyahu was first summoned for questioning by the police more than six months ago. Though he was interrogated a few more times since, it is still too soon to tell whether the police investigations will yield indictments, let alone a conviction. This seems like a good time for review of the way the law addresses a situation in which a prime minister is subject to criminal proceedings. Every stage of the criminal proceeding - investigation, indictment, and conviction - is defined differently by law. The following review addresses the legal aspects of the issue, but also discusses public and governance aspects of a prime minister under a cloud.

Investigation launched -> Indictment filed -> Conviction (first instance) - > Final conviction (no appeal)

Investigation

The first stage, which is where PM Netanyahu is in when this is written, is the investigation - a preliminary stage that may or may not end with a charge sheet. The law does not require that the PM step down or take political timeout at this stage, but only states that the instruction to launch an investigation against an incumbent PM should be agreed to by the Attorney General (AG), who often makes that decision, particularly when it concerns a PM, only after conducting a "preliminary inspectionSome maintain that the preliminary inspection is a separate stage that precedes the official inquiry. We will not analyze it so here. According to existing AG instructions re investigations against public officials, the AG's consent follows "a preliminary examination of the complaint and is meant to determine whether an investigation is warranted".."

Why does the law not present an option of suspending a PM from office at this stage? It may be argued that this is a reasonable arrangement. After all, not all investigations yield indictments, and civil servants and public officials should not be subject to sanctions as long as they are presumed innocent. Though it should be remembered that the AG may give his consent to launching investigations against the PM only after a preliminary inspection that assesses the existence of a "reasonable suspicion that justifies an inquiry." See also Rinat Kitai, Deposing Public Officials due to Suspicion of a Criminal Offence, 2 Alei Mishpat 107 ,2012 [in Hebrew]. Nevertheless, in certain cases, the Supreme Court took a different approach and stated that the presumption of innocence does not apply outside criminal proceedings and should be of lesser importance when dealing with the appointment or the ousting of public officials. According to this approach, though the law does not explicitly call for sanctions against a PM under investigation, this does not eliminate the complexity of the situation - even more so when the said PM is questioned as part of several ongoing criminal investigations that might last a substantive period. Indeed, should the PM be dragged into a lengthy investigation process, it might naturally impair on his order of business and daily work, and cast a shadow on his ability to reasonably conduct the affairs of the state while spending time, energy, and mental resources on his legal affairs. In other words, it may be argued that under such circumstances, the PM might not be able to properly fulfill his duties - namely, become effectively incapacitated.

In this respect, we hope that the legal authorities will expedite and quickly conclude the investigation. The fact that the Chief of Police said, "we realize that a quick conclusion of the investigation has public meanings," reflects the realization that having a PM under lengthy police investigations is an unhealthy situation. Yet, what if it turns out that despite the efforts, investigations last longer than expected? We should remember that the previous two prime ministers were questioned for months. Were they supposed to stay in office as usual, or declare temporary incapacity and step down? It is worth remembering that the prime minister of the State of Israel is one of the busiest world leaders. When he spends time on and preparing for police interrogations, clearly his capacity to give his full attention to the affairs of the state is impaired.

Basic Law: The Government states that when a PM is temporarily unable to fulfill his duties, he should be replaced by his deputy When a PM does not appoint a deputy (the law does not require appointing one and Netanyahu is not the first PM to choose not to man that post), the cabinet should name one of its members (minister) to serve as acting PM for the duration of the incapacity. . The Law further states that a PM thus incapacitated may return to his office within a 100-days period, but incapacity becomes permanent after that period and thus automatically ends the government's term. At the same time, the law is rather vague on the circumstances under which a PM may (or should) become temporary incapacitated, nor does it specify the body that may (or should) determine that. There are, however, certain circumstances under which the PM's inability to fulfill his duties is quite obvious. For example, when a PM undergoes a medical procedure during which he is desensitized or anesthetized, he is clearly unable to fulfill his duties and is then replaced by his deputy or another cabinet minister. The same applies in more serious medical cases. When PM Ariel Sharon had a stroke in early 2006, he was clearly incapacitated. Ehud Olmert became acting PM during the temporary incapacity period and was nominated prime minister when it became permanent, after 100 days. Certain cases, however, are far less obvious. In Netanyahu's case, it is not clear what should happen when a PM undergoes a series of intense interrogations that cast doubt on his ability to effectively manage the affairs of the state. Should he declare himself temporary unable to fulfill his duties and take time off to put his personal affairs in order? And if he does not believe that move is necessary, should the Knesset be authorized to force him to take a timeout?

As noted above, the law is not clear on that matter. Ehud Olmert, for example, remained as PM while the police investigated him on several affairs in 2007-8. Eventually, after he lingered for months, political and coalitional pressures made him announce his resignation (rather than incapacity) as prime minister. Yet, even before he resigned, certain politicians advocated changing the law so that it state who has the power to declare the PM temporarily incapacitated.

Indeed, the letter of the law should be clearer. At the very least, it should be more specific and clear on when and how a PM may declare himself temporarily incapable of fulfilling his roles (or suspend himself) and regain that capability when he sees fit (within the 100-day period stipulated by law). A similar mechanism is already in place with regard to the post of the President of State. The law states that the President may ask the Knesset to temporarily suspend him because of his inability to fulfill his roles. Former President Moshe Katzav opted for that arrangement near the end of his term and asked that the Knesset declare him incapable when he was interrogated on rape charges. Knesset Speaker Dalia Itzik replaced Katzav as Acting President for the last six months of his term.

Furthermore, under certain circumstances during an investigation, perhaps a legal-experts committee that includes the AG should be authorized to consider suspending a prime minister - as the IDI suggested in 2015 (see below). It would seem that such a mechanism offers an appropriate balanced arrangement that allows a group of independent legal experts to consider whether a prime minister may be ordered to step down temporarily without formally deposing him, thus causing the Government to resign and creating undue political upheaval.

This is the IDI suggestion:

1. Should a criminal investigation be launched against a prime minister on suspicions of an offense related to his position, whose circumstances involve moral turpitude, and should a substantial suspicion coalesce - the Supreme Court  President will appoint a committee to consider his suspension, comprising:

    A.  A former Supreme Court president

    B.  The AG

    C.  A jurist capable of serving as a Supreme Court justice

2. The committee may suspend the prime minister should it think that remaining in office might impact the investigation against him, and that the public interest in revealing the truth surpasses, in the circumstances of the case, the harm caused by his suspension.
3. The committee may not suspend the prime minister before he is given an opportunity to argue his case.
4. A prime minister so suspended should be viewed as temporarily incapable of fulfilling his role.

(Source: Doron Navot, Yuval Feldman, Mordechai Kremnitzer, Lina Saba-Habesch, Tehilla Shwartz Altshuler, and Amir Fuchs (2015), A Plan for Combating Government Corruption, Jerusalem: IDI, p. 21.

After an Indictment Is Filed

By law, indictments against a PM are filed by the AG. The PM, as all other Knesset members, may review the indictment before it is filed and may, within 30 days after receiving the indictment, ask the Knesset to declare him immune to criminal charges for reasons specified by lawFor more on this, see "Four Short Notes on MKs' Immunity", Prof Suzie Navot, Parliament, vol. 70 (2012). . What then should happen when a presiding PM is indicted? Should he suspend himself or resign at once? How should he act after the AG announces his intentions to file charges, subject to a hearing? Should he suspend himself until the hearing takes place, even before an indictment is filed? Though we are looking at an advanced stage of the criminal proceeding, existing law does not explicitly stipulate that a PM must step down once he is charged. In other words, the fact that a charge sheet against him has been filed is not in itself a clear and immediate reason to end his term in office.

Nevertheless, once a charge sheet is filed, the AG's legal stance and Supreme Court rulings on the matter play a significant role. Handing down two verdicts known as "the Deri-Pinhasi Precedent,In 1993, a charge sheet was filed against Minister of the Interior Arye Deri and there was an intention to file a charge sheet against Deputy Minister Refael Pinhasi (but the Knesset decided not to lift his immunity). The two failed to resign and then Prime Minister Rabin failed to fire them. In two rulings (in the Government Quality Movement and the Amitay cases), the Supreme Court established a precedent according to which, when an indictment is filed against a minister or deputy minister, under circumstances these rulings elaborated on, they must be removed from office." the Supreme Court stated that once an indictment pertaining to a grave offense has been filed against a Government member, he should be removed from office if he does not resign on his own accord, because it made a distinction between the minister's capacity to fulfill roles as stipulated by law and the PM's reasonableness of considerations when deciding to oust an indicted minister. Some argue that if that ruling applies to Government members, it all the more so applies to the prime minister - due to the supremacy of his standing and position, and due to his duty and power to depose a minister under similar circumstances, an act he would not be able to make while under similar circumstances himself The wording of Article 5(a) of Basic Law: The Government - "The Government is composed of a Prime Minister and other Ministers" - may be deduced as stating that the prime minister is himself a minister (Government member). . Others differ and argue that while a minister is an appointed official, a prime minister is an elected official (albeit, indirectly). The latter's resignation from duty is not politically equal to deposing a minister. Also, Basic Law: The Government does not name a body authorized to depose a prime minister (except for the Knesset, in a vote of no confidence against the entire Government; though a suspension is possible as part of temporary incapacity)See Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, Vol. B, 847-848 (2005). . Several years ago, the issue came up for discussion as part of a petition filed against the mayors of Nazareth Illit and Ramat Hasharon, and the Deri-Pinhasi procedure was applied in their cases (in a verdict that led to a 2013 amendment of the law and the appointment of a committee whose duty it is to consider whether or not to depose presiding mayors when they are charged with grave offencesHCJ 4921/13 Ometz et al v Rochenberger et al (Oct. 14, 2013); The Local Governments Act (suspending a local government head because an indictment is filed) (legislation amendments), 2013..

Furthermore, clearly an indictment once filed bolsters the public's expectation that an accused PM resign or be suspended. In such a case, public pressure will intensify significantly because that would be a precedent and because a PM's ability to manage the affairs of the state would be further impaired. It may be assumed that many citizens, pundits, public officials, and even members of the PM's own party would feel that a prime minister facing criminal charges cannot remain in office.

That is why we need to consider revising the law so that it forces an indicted PM to suspend himself or declare temporary incapacity. In this context, we would like to mention a suggestion made by a public committee (headed by former Supreme Court President Meir Shamgar), formed to devise Government members' ethics, that a Government member - the PM included - should suspend himself or resign when "the law-enforcement authorities make an official statement, issued by individuals authorized to file indictments, that attributes grave offences to them that impair on the public's trust in the government." Another suggestion in the same spirit was made in the aforementioned 2015 Plan for Combating Government Corruption as promoted by the IDI. According to that suggestion, Basic Law: The Government should be amended so that if a PM is charged with offences involving moral turpitude, he "should be viewed as temporarily incapable of fulfilling his role."

Conviction

What should be the fate of a convicted prime minister? If found guilty of an offense that does not fall under the definition of moral turpitude, he does not have to resign and may remain in office. If found guilty of an offense that the court defined as involving moral turpitude, the law says that his term in office ends automatically once the verdict becomes final. In other words, a PM may practically hold on to his post even if he is convicted by a District Court in a felony with moral turpitude because he still has the right to file an appeal with the Supreme Court. Only after that appeal is denied, his term (and his government’s term) is automatically expires.

Still, experience has shown that the period between these two rulings could be several months. A situation in which a convicted PM awaits the results of his appeal while serving as usual might be intolerable in terms of governmental norms. The law, therefore, establishes a procedure that may be applied to depose a PM who has been convicted of a crime (with moral turpitude) as soon as the first instance finds him guilty. This is a complex procedure that was designed to guarantee that a PM's removal from office follows real issues and not some political intrigue.

• First, within a month after a PM is found guilty by a District Court, the Knesset's Knesset Committee should decide whether or not it recommends that the PM be deposed. By law, the PM may present his case before the Committee.
• Upon concluding its deliberations, the Knesset Committee should present the Knesset plenum with its recommendation, but if none is presented, the Knesset Speaker will submit the issue of the PM's removal from office for a plenum discussion (where the PM may also present his case).
• Subsequently, the Knesset Plenum will hold a vote and a majority of 61 MKs at least may terminate the PM's term.

Summary

The law and court-stipulated rules lay down distinct arrangement systems for every stage of the criminal proceeding - from interrogation to final conviction. It should be stressed, however, that according to one interpretation of the law (and, as noted, there is another), there is no reason for a PM not to remain in office until his final conviction. The Knesset may oust him a while sooner, following his conviction by the first instance.

It may be argued that the current legal arrangement, which theoretically allows the PM to hold on to his seat throughout the legal proceeding and even after he is convicted, is not satisfactory. Advocates of that view argue that the law should align with public's expectations and create legal tools that allow or force a PM to suspend himself at earlier stages of the legal process. Suggestions in this spirit were raised by the IDI as part of its plan for combating government corruption.

It may, however, be argued that the law should not add to the current arrangements, and that pressure to oust a PM who faces criminal charges should be made by the public, based on public norms. Regrettably, in the past, we could expect civil servants who face criminal charges or proceedings to show enough personal integrity and responsibility and quit their public posts without being forced to do so by law (as is the case in many democratic countries). Today it seems that such expectations are unrealistic given the prevailing political cultural and norms.

The matter of a PM under criminal proceedings, therefore, gives rise to quite complicated dilemmas. For example: the PM's presumption of innocence vs. public appearances, political ethics, and the potential harm this might cause to the public's confidence in the government; the stability of the political system, effective governance, and the continuity of government (key arguments used by individuals who have promoted a bill that would ban interrogating a presiding PM) vs. the formal and essential rule of law and equality before the law. Another issue worth considering is how far the dollar of the judicial-legalistic arrangement may and should be stretched, and when the public-norm arena should be allowed to act so that the legal order does not break due to a political culture that disrespects public ethics. 

A Prime Minister Under Criminal Investigation:
Current v Desired State

Stage	Current Law/Legislation	Our Recommendations
Investigation	An investigation into the PM's affairs is launched only after the AG signs off.   The law does not force the PM to resign.	Given certain circumstances during an investigation, a legal-experts committee that includes the AG may be authorized to consider suspending a prime minister. Such an apparatus offers an appropriate interim arrangement as it allows an independent group of experts to consider whether a PM should take a timeout without officially deposing him, causing the Cabinet to resign, and unnecessary political upheaval.
Indictment	The AG files an indictment with a District Court. The PM must not resign by law. The question remains whether the Deri-Pinhasi procedure (by which the PM must fire a charged minister or deputy minister) applies here too. The issue is disputed: while some maintain that this procedure all the more so applies to a PM, who must resign, others argue that because the PM is an elected official, the two cases are not politically comparable.	We believe that once a charge sheet has been filed against a PM, he should at least opt for temporary incapacity: If a PM is charged with offences involving moral turpitude, he should be viewed as temporarily incapable of fulfilling his roles.
Conviction - First Instance	The PM must not resign by law. The Knesset may - in a procedure stipulated by law and with an absolute majority - depose a PM who was convicted of offences involving moral turpitude.	No recommendations for this stage.
Final Conviction (Peremptory Verdict)	A PM's term ends automatically.	No recommendations for this stage.