King Bibi: A Dilemma
This Blog is written by Jissy Rajish from The National University of Advanced Legal Studies, Kochi. Edited by Saumya Tripathi.
Despite our world being caught under the catastrophe of coronavirus, Israel is witnessing a dramatic event that is holding first serving premier to face trials after three years of investigation of scandals swirling around, that is of the person who stood up for Jew community forming the longest serving Prime Minister, Benjamin Netanyahu. During the trials, demonstrators were present at two opposing sides with their words. Pro Netanyahu protestors scathingly remarked the allegations of fraud, breach of trust and bribery against him as ‘fabricated political coup and witch hunt.’ While anti-Netanyahu people portrayed him as ‘national disgrace’ and urged for his resignation. Even the opposition acclaimed of Netanyahu ‘standing tall with the head high’ in a surgical mask as “dragging into a civil war to save himself.” The destiny might have expected the leniency of the media and public to witness his arrival to the stage which was set for the drama after having the first Cabinet meeting of the new government following three inconclusive elections without caring the pandemic social distancing. The protesting minds were divided on the basis of ‘corrupt prosecution’ as well as ‘crime minister.’
Does the current scenario is awaiting a condition in which Israel is pushed into a State which ultimately end up with defeating an undefeatable at elections over a decade? Will his shield that offers being received from close connected friends prevail over the charges indicted of expensive gifts from wealthy friends and gifts in exchange of news coverage by media? Does the whole world will be a part in onlooking the changing dramatization along with the State of claims of victimhood arousing religious and nationalist followers versus disqualification of position during indictments?
MILESTONE OF ISRAEL
The great queries ignited with minds of each speculator with regard to the trial of the Big Man of Israel were enormous. It is unsurprising for the people to have such questions erupted in their minds if their State is witnessing a major political drama in which the protagonist is the longest serving Prime Minister of the concerned State and though unwisely to expect of the political and democratic crisis happened days before the curtain raising from the Court room in Jerusalem. Thereafter the defendant in the criminal proceeding is accusing the left wing of their witch hunt in alleging him the offence that a legal person or a public servant in his authority is not supposed to do in his career as serving for the nation. Where will the trial be held? Who the Judges appointed are? How long will it remains haunting to be engraved in the history of Israel? Does he steps down from his obligations as a PM or he continues with the democratic process of forming Government in the Knesset?
The news of three Judges examining a person handling the most important function, the Prime Minister, will be astonishing not only for the citizens in Israel but also for the global citizens witnessing this as a landmark event for any parliamentary democratic country to happen ever in the history. The starting of the trial was even delayed though the investigation started from 2016 thanks to the recent elections to the Knesset and the pandemic, Coronavirus that affected the country as well as the whole world.
The nation will be fortunate enough to have the newly formed Government to continue at least till the end of the trial. Along with this it will be a great opportunity such an important person in the nation to mark is continuation for his regime even after the three consecutive elections that caused turmoil. The High Court of Justice in 1993 has finalised that all ministers except a Prime Minister can be made to resign from respective positions if cited.
Previous leaders who faced trials resigned before charges were handed over. Before entering into the Courtroom, the defiant leader verbally attacked the justice system, vigorous police, biased prosecutors and hostile media for allegations made against the will of people. Critics went on to the extent by saying that his attack might end up in destruction of faith of citizens in State institutions.
Initially Case 1000 opened in 2016 which alleges Netanyahu and his wife of receiving valuable gifts and from wealthy acquaintances. This was knocked back by him as a token of friendship. Following this, Case 2000 which dealt with recorded conversations of the PM and Arnon Mozes, the Chairman and Editor of newspaper Yedioth Ahronoth emerged. The recordings revealed of the discussion between the two of legislation intending to harm the major competitor of Yedioth, the Israel Hayom. This was spurned by both as it didn’t came up as a legislation yet and they haven’t intended the same. Instead of directly involving Netanyahu, Case 3000 rather involves professional and personal ties with Netanyahu regarding the deal between Israel and Germany in purchasing 3 Dolphin class submarines and 4 Sa’ar 6 class corvette warships. Finally emerged the Case 4000 concerning relationship of telecommunication company Bezeq with its regulator, ministry of communication, headed by Netanyahu. As a branch of Case 4000, emerged the Case 1270 of offering bribe to an Attorney General of Israel candidate in exchange of dropping a case against wife of Netanyahu which was closed owing to lack of evidence. For continuously persuading to change of the news coverage, Elovitch and his wife was charged with bribery, obstruction of justice and suborning a witness in connection with the investigation. This is charged under Sec. 245 of suborning related to investigation of the Penal Law, 1977. Netanyahu denied the same as no quid pro quo was received for this action which thereafter signifies of no instance of such practice as stated happened.
Israeli State Prosecutor recommended for indicting Netanyahu on 19th December 2018. On 28th February 2019, the Israeli High Court of Justice rejected a motion filed by Netanyahu’s Likud Party to stall the publication of the recommendations. Following this, the hearing took place in October 2019. On 21st November, Netanyahu was indicted in Cases 1000, 2000, and 4000 for charges including breach of trust, accepting bribes and fraud. Netanyahu was legally required to relinquish of his ministry portfolios except his position as Prime Minister.
In between this political wizardry against Netanyahu, the protagonist was able to lead the play for forming the Government in the Knesset. Israel Court ruled that Netanyahu can form a Government amidst the charges filed against him and thus it ditched the final attempts of opposition to make an end to the career of the longest serving PM in Israel. This way was paved by the unanimous ruling of the Court against preventing a leader from forming a Government despite of the criminal charges raised forming the ‘heart of a democratic process.’
On 9th March 2020, Netanyahu filed a motion to delay the trial for 45 days which was rejected by the Court. However, trial was pushed back until 24th May 2020 as a result of pandemic Coronavirus. Netanyahu appeared at the first session on 24 May 2020.
Thus it has set up the wheels in motion for a historic trial, The State of Israel v. Benjamin Netanyahu in the Jerusalem District Court. Taking experience from the previous trials of officials in Israel like that of Ehud Olmert, it is clearly visible that the judgement will be prolonged. Meanwhile the law is finalised as if Netanyahu is found guilty of these offences, bribery; and fraud and breach of trust carries sentence up to 10 years or fine or both and sentence up to 3 years respectively.
THE MARRIAGE IN HEAVEN
The election of Benjamin Netanyahu to form the golden seat in the Knesset has made him the longest serving Prime Minister in Israel by winning 65 out of 120 seats of Right wing coalition led by Likud party. Despite of the charges of corruption faced by him, this is a significant moment in the history of the State with respect to the ongoing legislative and executive matters affecting a democratic State. Netanyahu is playing a torch bearer role in relation to the State affairs and its economic and political ties with other countries. In spite of the political controversies and the global pandemic that has captured the State, Netanyahu has raised his efforts to reiterate the ties of Israel with other countries, made US to shift their embassy into Jerusalem and even he has marked his prolonged existence in the Israeli economy by increasing their GDP into 70%.
Moreover, establishment of a strong relation by Netanyahu with his counterpart in India, Narendra Modi has been reflected in the policy priority given by the former with respect to the latter. Even after India making her strong position by casting her vote for a resolution against US policy of Palestine by Israel, Netanyahu stated that ‘sky is the limit’ concerned with Israel India relation while addressing UN in 2015. Since 2017 visit made by Modi which ended envisage of Israel by India on the mirror of Arab-Israeli conflict, Netanyahu has made his token towards strengthening their ties.
India would definitely relies on Israel for its strong base for modernising the military and expertise in defence sector replacing the archaic Russian dominancy. Apart from these Israel, being the supplier of military equipment to China creates an apprehension against their invasion and increasing territorial controversies within the two frontier sharing neighbours. As a security concern of India as against the Russian cooperation with Pakistan is indirectly supporting its vision towards strong relation with Netanyahu regime of Israel. The expectations placed by India on Netanyahu and his Government is on its peak for the elevation of developmental and economic restructuring especially in focus with the Make in India initiative. The political turmoil in the Middle East has made this relation without much complicacies which is also a major ally of US of which India has its greatest concerns in this modern era.
Ever after the issue of Palestine was raised before the UN, India was against Israel and Israel under the leadership of Netanyahu will always search for the scope of India’s support with regard to this. Still, India is playing a balanced role for its increased bilateral ties with Israel for its military alliance without shifting from its position related to the issue of Palestine and not ignoring the concerns of the Arab world. Though some bilateral arrangements made between them were suspended in between the political and democratic crisis succumbed Israel election in 2019, it will be crucial for the coming years for Netanyahu to fight for his trials in his homeland and reviving the Indian partnership as it is now regarded as the ‘marriage made in heaven but consecrated in Earth.’
PLACED UNDER SCRUTINY
On 21st November 2019 Benjamin Netanyahu was charged with offences of deception and breach of trust in Cases 1000 and 2000 along with deception, breach of trust receiving bribes in Case 4000. Fraud and breach of trust done by a public servant injures the public is punished with 3 years’ imprisonment under Sec. 284.
Art. 5 of the Penal Law, 1977, pertains to bribery offences and essentially criminalises the offering, acceptance, giving or receipt of bribery to or from a public servant. Sec. 34X of the Penal Law, 1977 broadly defines a ‘public servant’.
Sec. 290(a) expands the general definition ‘public servant’ which stands relevant for various case laws decided in Israel. It include employees of the State of Israel; a municipal authority; certain government-affiliated organisations; and any enterprise or institution in whose management the Israeli government has a role. It also includes any arbitrator or director acting on behalf of the State of Israel in a Government company or subsidiary.
Bribe taking and bribery is held under Sec. 290 to 291 of Art. 5 of the Penal Law, 1977 in which a public official who agrees to or accepts any bribe in his or her official capacity is held guilty. An individual or legal person that offers or gives a foreign public official any bribe in order to obtain, guarantee or promote a business activity or other advantage will face charges as per Sec. 291A of bribing a foreign official. Individuals or legal persons are considered to have accepted a bribe if they receive money, a monetary equivalent, a service or any other benefit in order to offer a bribe or motivate a public official or foreign public official to discriminate or act with favouritism under Sec. 295(a) and 295(b). This law is specifically mentioned under the umbrella of brokering bribery.
Sec. 2 and 3 of the Prohibition on Money Laundering Law, 2000, bribery offences are categorised as predicate offence in addition to the Penal Law, 1977. It emphasises for ten years’ imprisonment or a NIS 4,520,000 fine in the case of money laundering. Laws are mentioned in various Guidelines like the Knesset Ethics Committee decisions specifically on matters of conflict of interest in relation to members of Parliament. The Prime Minister being, a Member of Parliament will also be governed. Sec. 34J and 34K of the Penal Law, 1977 focusing on self-defence and necessity respectively are available as general defences that a defendant in criminal proceeding can claim. But this is only available if facilitation payments were made by an individual or a legal person under extreme circumstances and in no way available for bribery or corruption cases.
Apart from the above mentioned penalties, Sec. 297 of the Penal Law, 1977 confiscates what was given as bribe and cause the individual or legal person that provided bribe to pay the State treasury the value of the benefit derived from the bribe if the accused is convicted pursuant to Sec. 290 to 296 of the same.
21st century is witnessing wide variety of cases accusing different public officials as the culprit especially related to corruption and offering of bribery charges. In December 2016, first conviction was rendered for charge of bribery of a foreign official in Tel Aviv District (Fiscal and Financial) v. NIP Global Ltd pursuant to Sec. 291A, 293 and 294 of the Penal Law, 1977 in. The convicted NIP Global Ltd. was required to pay fine by corporation.
Apart from this, many public officials of Israel have been charged within the scrutiny of bribery and corruption. One of them trapped in the hole was former PM Ehud Olmert of obtaining bribes in December 2015. He was found guilty and was served with prison sentence. Another one in the den was former Deputy Minister Faina Kirschenbaum against whom corruption was indicted in August 2017. Now the turn is for the beloved serving PM of Israel, Benjamin Netanyahu against which bribery scandals are involved allegedly in The State of Israel v. Benjamin Netanyahu.
THE IMMUNITY STANDOFF
Being a Member of Knesset, the honourable Prime Minister, Benjamin Netanyahu is privileged to seek parliamentary immunity from indictment of criminal charges. Under the Knesset Members Immunity, Rights and Duties Law, 1951, Netanyahu ask the Knesset to grant him functional immunity for the duration of his service on several potential grounds. Those grounds included for this parliamentary immunity are that: firstly, offenses were necessary for the fulfilment of his official duties; secondly, prosecutorial maleficence or discrimination; thirdly, prior disciplinary action by the Knesset; and finally the possibility of “substantial harm to the functioning of the Knesset, one of its committees or the representation of the electorate.” The last ground requires balancing between the benefits of blocking criminal proceedings and the public interest. It is necessary to consider severity and nature of offences for this particular ground to be availed.
The law also grants members of Knesset a substantive immunity for any action in their capacity “performed while fulfilling duty or in order to fulfil duty.” This is designed primarily to protect speech and political action of Knesset members. Thereby Netanyahu was not able to qualify the requirements of the law and thus the request was declined. The final authority lies upon the Knesset Committee, a subcommittee of the full parliament, to deny immunity under Art. 13(c1) of the law.
Unsurprisingly Netanyahu has approached for the same. Though the Supreme Court has previously annulled some decisions of Knesset Committee pertaining to the immunity of other Knesset members, the current climate in Israel owing to the amendments for the Knesset Members Immunity, Rights and Duties Law, 1951 persuade to decline the request made by the supporters of the Big Man of Israel. In Bishara v. Attorney General and Movement for Quality Government in Israel v. Knesset Committee, the landmark decisions of the Knesset Committee were scrutinised by the Supreme Court under a lower standard of deference. These court has framed immunity decisions framed by the Court were quasi-judicial decisions different from ordinary legislative work.
As per the 1951 law, the Knesset members had immunity and the Attorney General had to petition the Knesset Committee to remove it. The 2005 amendment emancipates that the Knesset Committee is allowed to grant immunity upon the request of a Knesset member, with the approval of the Knesset plenum. Till date the two petitions were rejected by the Committee. So the ball was only with the Supreme Court to intervene whether the Knesset decide to grant immunity to Netanyahu. There is no presumption of immunity under law and the court has intervened even when there was a presumption of Parliamentary immunity.
The Basic Law: The Government requires automatic removal of the Prime Minister if his conviction of the charges filed against him are final which will be revealed only after the completion of the case as against the other ministers and mayors are required to be removed following the indictment under Art. 23(b) and 27 of the Basic Law. This is one of the complex constitutionality issues that if the prime Minister is removed then it resultantly causes the resignation of the entire Government. Unlike the situation of the Prime Minister, Art. 20 of the Tenure Statute provides about automatic suspension of mayor if convicted with moral turpitude.
ANALYSING THE CHANGES
The approval of Judiciary in case of Netanyahu’s competence to continue the position of Prime Minister indirectly gives the message of toleration of pervasive corruption. This might lead to the conflict between self-interest of the Prime Minister and public interest of Israel. The absurdity with this ruling is that how can it be that Netanyahu is legally barred from serving as an ordinary minister, but not as prime minister?
Meanwhile Netanyahu is currently a caretaker prime minister by default due to the political deadlock. If continued without maximum support in the Knesset it would have ended in undermining the very essence of a Parliamentary democracy with a fourth set of election and Israel in ending with utter chaos.
Whatever happens within the prolonged years of continuing trials, the end of the trial will help people to decide whether their judgement will be proving that the charges indicted on the PM will be meaningless and a heap of empty or was it worthwhile of considering a legal person charged with three criminal offences renounced from his seat? Still the matter of concern for this unprecedented event will be though it was fabricated facts or valid one, was the act of continuing with the position was justified in its ethical concerns. Such an ardent honourable person will be determining the future of Israel especially vis-à-vis Israel-Palestine conflict in following years. Whether the power with the reign of a person charged with criminal offences working close to the institutions representing and appraising public interest and the interest of public will be balanced? This will be the most climacteric matter that will be solved for next 2-3 years.
The world is in a stage of transition which remains just as an onlooker in which the 42% of citizens of a nation, Israel is still believing that the charges and evidences emanated out are fabricated by left wing leaders to overthrow the leader of leaders who plays significant role in the place. Two opposite theories resonated recently will be definitely witnessing the unpleasant disarray happening there which will be turning a problematic personal conduct against the paved way of justice or the evolution of a great leader appraised with false charges resultant of a political witch hunt. Whatever be the termination, let us just hope for the justice seem to be done.
Laws of the State of Israel, Special Volume, Penal Law 5737-1977, Ministry of Justice.
worldlii.org/ | WORLDLII-Categories-Countries-Israel-Courts and Case-Law
The Wall Street Journal