In an op-ed published in the Washington Post, Yohanan Plesner assures readers that, "Supporters of Israel's democracy at home and abroad should know that so far the checks and balances built into our young democracy are holding up in the face of serious pressures."
Attorney General Avichai Mandelblit’s decision to indict Prime Minister Benjamin Netanyahu is so momentous that it can rightly be compared to the fateful days in July 1974 when the U.S. House of Representatives voted to impeach President Richard Nixon for his crimes. The timing, for Israel, is also extraordinary. The attorney general’s announcement comes just weeks before a contentious election. Not surprisingly, he has been pilloried by some for blatant interference in the democratic process.
To a certain extent, Mandelblit is a victim of Israel’s unique parliamentary system. In presidential systems, sitting heads of state enjoy varying degrees of immunity from criminal prosecution while in office. In parliamentary systems, the situation is murkier. While in theory parliaments can vote to remove a member’s – including the premier’s – immunity, in practice it is virtually impossible. In the U.K., for example, parliament can vote to impeach a member, but the last time such a measure succeeded was in 1806 and no prime minister has ever been impeached.
In Israel too, no sitting prime minister has ever been indicted, meaning that the attorney general’s announcement pitches us into uncharted legal and political waters. I vividly recall the drama of July 2008 when, as police investigations into his conduct came to a head, Prime Minister Ehud Olmert convened our Kadima Party faction in the Knesset and revealed his decision to resign. Grasping the political, legal and ethical implications of the situation, Olmert did not even wait for the investigations to be completed or for the indictment to be served. Netanyahu, on the other hand, has made clear that he has no intention to resign, and that he plans on fighting his legal battles from the Prime Minister’s Office in Jerusalem.
Complicating matters even further is that while according to existing legal precedent a minister charged with a crime must resign, a majority of legal experts think this does not necessarily apply to a prime minister, whose resignation entails the collapse of the government and the likelihood of new elections. Both supporters and opponents of Netanyahu have sought to amend the law, with the former predictably seeking to render him immune from prosecution, and the latter, equally predictably, seeking to force his resignation. Needless to say, any legal changes adopted should not be issued on an ad hominem basis, and in any case must not apply to the current prime minister.
The next few months will be decisive ones for the rule of law in Israel. There is a good chance that following April’s elections, Netanyahu will be tasked with forming a government for a fifth time. Legally, Mandelblit’s decision will have no effect on this process. In fact, Israeli law states that a prime minister only needs to resign after he is convicted of a crime that includes “moral turpitude” and even then, only after the conviction is final following all possible appeals to the Supreme Court. Many of Netanyahu’s advisers have already begun talking loosely about building and “indictment-proof” coalition, whose members would commit to stand by him through the end of his trial.
If Netanyahu fulfills his pledge to remain in office despite an indictment, Israel could find itself in the precarious situation where, throughout this ordeal, the prime minister chairs cabinet meetings in the morning and then heads off to defend himself in court in the afternoon. Just as concerning, is the fact that these investigations into a popular prime minister have already led to a populist assault against the courts, the press and democratic gatekeepers such as the attorney general’s office and the police.
Although the indictment of a prime minister for bribery is no cause for celebration, it is in fact an indicator of the underlying strength of Israel’s democratic institutions. Our system seems to be working. The former police chief – a personal appointment of the prime minister and a member of the national religious stream that makes up a key component of his political base – recommended charges in three separate investigations against Netanyahu.
The attorney general – who had previously served as Netanyahu’s cabinet secretary and is of similar ideological upbringing – has now proven his independence as well. By all accounts, Mandelblit is going about his job with consummate professionalism and steadfast dedication to the public interest. He is not allowing partisan opinions to cloud his judgment, while steadfastly protecting Netanyahu’s presumed innocence until proven otherwise.
Over the next few months we are sure to see inflamed passions as the legal decisions are finalized and the spectacle of an indicted prime minister becomes a reality. Nevertheless, supporters of Israel’s democracy at home and abroad should know that so far the checks and balances built into our young democracy are holding up in the face of serious pressures. In Israel, no one is above the law, and every citizen can have confidence that in the end, justice will be done.
This article was first published in the Washington Post.