We are in uncharted waters in comparative terms. Israel held three election cycles within 12 months to end the political stalemate that prevented the formation of a government until recently. One of the thorny issues was the allegations of serious corruption against Prime Minister (PM) Benjamin Netanyahu, who has been indicted and suspected of committing serious offences involving fraud, bribery, and breach of trust.
Public law as well as moral considerations should have led Netanyahu to resign and quit public life until the end of his trial. Yet, he refuses to do so, arguing that he is not only innocent but also enjoys a mandate from the public to continue in office. Israel has adopted a parliamentary system following the British model. In a parliamentary system, no executive is elected directly. Rather, the Israeli public votes for political parties, which, in turn, hold a proportional number of seats in the Israeli legislature (the Knesset) corresponding to the level of support they enjoy in the country at large. The executive depends on the support of a majority, or amiss, plurality of legislators to rule. Netanyahu thus holds the position that when the public voted at elections, the votes were based on the identity of the candidates who led the major political parties. At the time of elections, the public knew the type of allegations against him as well as the fact that he was indicted.
Since the Israeli High Court of Justice treats practically all topics as justiciable, the impeachment of Netanyahu reached the Israeli Supreme Court as soon as Netanyahu was indicted. The Court held that, considering the looming 2020 elections, there was no need to decide the petitions on the merits. The petitions resurfaced again after the 2020 elections and are “ripe” for decision. The Supreme Court will hear, and probably decide, them in the coming week. Just as the Miller II decision was unprecedented, so, too, this upcoming decision will require the Israeli Supreme Court to define the nature of the relationship between the executive and parliament in a parliamentary system. How should we analyze the issue? What is the greater internal threat to the democratic process: having a supposedly corrupt PM lead the country or having the judiciary remove a PM or prevent a candidate who enjoys parliamentary support from entering office?
The possibility of the judiciary impeaching the head of the executive seems unthinkable to Americans. Recently, the Democrats accused President Trump of abusing his power by asking Ukraine to intervene in domestic elections to harm a political rival, former VP Joe Biden, in exchange for monetary support. But, the battle for impeachment was fought, and lost, in Congress. Many have not overcome the judicial decision of Bush v. Gore that stopped the recounting of votes in Florida after the 2000 presidential elections. They treat it as misuse of judicial power and accuse the judiciary of handing over the presidency to Bush.
Judicial impeachment of the executive is unthinkable in the US not only because the Constitution grants Congress the power to impeach, but also because this is considered a non-justiciable matter. On prudential grounds, the topic is best left to the representative branches of government. Impeachment is considered an important, necessary, tool to correct internal threats to democracy by the executive between elections, but this correction mechanism must be exercised by an elected representative branch. It must enjoy democratic legitimacy. Similarly, the UK entrusts Parliament with the decision to impeach a PM, an option some MPs considered during the heated days leading to Brexit.
How should the Israeli judiciary approach such an explosive matter? Any constitutional analysis must start with the constitutional text. Basic Law: the Government, which forms part of Israel’s formal supreme Constitution, provides that the legislature may oust the PM by a majority of 61 Members of the Knesset (MKs) and lead to the fall of the government, if the PM is convicted of an offence that the court defines as involving moral turpitude. Israel typically requires a constructive vote of no confidence, which means that a majority must vote constructively in favour of an alternative government when it ousts a sitting government. In the case of such criminal conviction of the PM, the Knesset may oust the government by a simple negative vote. Basic Law: the Government further provides that if the PM’s conviction of such offence is final, so that no further appeal is possible, then the PM is automatically ousted and his or her government falls. In both cases, if no alternative government gains the support of the legislature, then elections are held.
But the Basic Laws do not explicitly deal with indictment. Should we interpret these constitutional provisions as setting an exclusionary course of action? To provide an answer, one must examine Knesset’s debates when enacting these constitutional provisions in 2001. MKs as well as representatives of the Ministry of Justice explained at the time that the provisions are intended to avoid a situation where the judiciary leads to the impeachment of the PM before a final verdict. They thought that an emergency may require a particular leader despite an indictment. They worried about political motives for prosecuting a PM. They wanted to protect the judiciary from the wrath of the representative branches.
Nonetheless, the Knesset’s intent cannot be conclusive since the Israeli judiciary applies purposive interpretation almost exclusively to interpret statutes and constitutional provisions. Under purposive interpretation, the judiciary assigns greater weight to promoting the objective values of the Israeli legal system as Jewish and democratic than to respecting the subjective intent of the Knesset when adopting the constitutional provision.
Under purposive interpretation, the Court must take into account the fact that there is a consistent line of judicial decisions that hold that even if statutes or constitutional provisions set conditions for removal from office or qualifications for serving in office, those should be treated as setting minimum standards alone. The judiciary may impeach officials or prevent their appointment to protect “public faith” in the integrity of the other branches of government.
In light of purposive interpretation, it is safer to assume that the judiciary will treat Basic Law: the Government as silent on the question whether indictment warrants the impeachment of the PM or prevents a candidate from assuming the premiership. We should thus search for complementary statutory arrangements. In parliamentary systems, the PM is typically a member of parliament and thus enjoys parliamentary immunity from prosecution. The control over the fate of the executive is thus entrusted to the legislature, even in cases involving criminal law, comparable to the impeachment process in presidential systems.
But, in Israel, the legislature amended in recent years the law regarding legislative immunity from criminal prosecution (so called “procedural immunity”). Currently, the default is that MKs do not enjoy immunity from prosecution unless they explicitly request it, and are granted immunity by a legislative majority. The Knesset decided to flip the default rule because the Court intervened and, even in cases in which the Knesset decided not to remove immunity, the Court ordered such removal. There is a substantial difference between the two default regimes: it is one thing for the Knesset to not grant immunity to a MK, and a whole different matter to remove an immunity that is otherwise granted to a MK. The former is an easier decision. In fact, under the new immunity regime, MKs rarely ask for nor are granted immunity. Accordingly, Netanyahu decided to withdraw an immunity request from the Knesset.
Should the Court draw an analogy and treat the impeachment of the PM the same way it treats ministerial impeachment? With regards to ministers, the Court held that they must resign or be fired by the PM, if indicted with serious offences. However, their impeachment does not lead to the fall of the government. In contrast, Basic Law: the Government provides that if the PM steps down for any reason, including death, resignation, or incapacitation, then the entire government falls. The Basic Law assumes that the identity of the PM is so important, that his or her replacement may not enjoy the confidence of the Knesset. In this sense Israel is not a pure parliamentary system but rather maintains a semi-presidential characteristic from the time it held direct elections for the PM.
The Court would seek to interpret the silence of the constitutional arrangements with regards to indictment of the PM through a balancing of interests. On the one hand, there is the concern that the public would lose its faith in the integrity of the executive branch. The PM might also be pre-occupied with criminal defence rather than focus on the administration of the country’s affairs. The PM’s decisions might be triggered by a conflict of interests rather than be based on the merits. There might be a reputational damage to Israel and its international standing when the PM is a suspect of criminal activity.
On the other hand of the balancing test, if the judiciary impeaches the PM, then it is the judicial branch rather than the voters who decide the identity of the head of the executive branch. In my opinion, this should be avoided in a democracy before final verdict. This week the AG, who indicted the PM, adopted a similar position on the matter in his response to petitions requiring the removal of the PM or his disqualification from serving in office. One should bear in mind that the standard of proof required to convict a person is that the person committed the offence “beyond reasonable doubt,” while the standard of proof required to indict a person is the “reasonable possibility” that the indictment will lead to a conviction. The public may lose faith in the integrity of the judicial branch, and its willingness to acquit the PM, if it is the judiciary that leads to his impeachment. Public confidence is needed in the judiciary, no less than in the executive branch.
Some argue that having an indicted PM run the country runs against rule of law principles. But, in a very deep sense, the fact that a PM may stand to criminal trial while in office suggests that Israel is a country run by law, not people. The US Department of Justice’s position does not allow the indictment of a President while in office, even if there are serious criminal suspicions against him.
But, these are not normal times. PM Benjamin Netanyahu heads a caretaker government. Supposedly, this is a government that has already been ousted. It continues to govern despite elections until a new government that can gain the confidence of the legislature takes its place. Thus, judicial intervention may not be so dramatic. It will not lead to the fall of a government that is already ousted.
I suggest to zoom out of the current crisis and examine this argument in historical context. A comparison to 1977 is warranted. At the time, PM Rabin headed a caretaker government. Aharon Barak, as the Attorney General, announced his intention to indict Rabin for holding a negligible bank account in the US in violation of Israel’s currency laws at the time. Rabin announced that he would not run for re-election and Barak ultimately indicted only Rabin’s wife. The 1977 election was watershed and marked the rise of Likud, the right-wing political party, for the first time since the establishment of the State. This historical precedent suggests that legal intervention may be as decisive or even more so during caretaker times. Since 61 MKs can require the President of Israel to assign the role of forming a government to a specific person, the petitioners are asking the Court to intervene in MKs’ or even indirectly the President’s discretion and prevent them from assigning Netanyahu the task of forming a government. This would require the Court to upset election results to protect the integrity of the executive branch. These are trying times for Israel’s democracy. Let the people elect their executive and legislature. And let the Court try the PM free of the heavy burden of impeaching him first.
Rivka Weill, Harry Radzyner School of Law, IDC Herzliya.
This is based on my article titled “Is the Judicial Impeachment of the Israeli Prime Minister Constitutional?” forthcoming in Law & Gov. (in Hebrew, available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3551603).
(Suggested citation: R. Weill, ‘Is the Judicial Impeachment of the Israeli Prime Minister Constitutional?’, U.K. Const. L. Blog (5th May 2020) (available at https://ukconstitutionallaw.org/))