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Netanyahu’s ‘cornerstone’: How the PM will seek immunity from prosecution

The question of whether Prime Minister Benjamin Netanyahu will seek parliamentary immunity from prosecution has hung over Israeli politics for more than two years, since criminal investigations into the premier were opened in October 2017.

The answer is expected to come in the next day, with Netanyahu — who has long evaded the question — saying on Sunday that seeking immunity from prosecution is not anti-democratic but rather a “cornerstone of democracy.”

Attorney General Avichai Mandelblit in November announced his intention to indict the prime minister in three corruption cases. According to the full indictment, Netanyahu will be charged with fraud and breach of trust in Cases 1000 and 2000, in which he is suspected of receiving gifts from wealthy benefactors and attempting to arrange a quid pro quo with a newspaper publisher. He will be charged with bribery, fraud and breach of trust in Case 4000, which concerns suspicions he gave out regulatory favors in exchange for positive media coverage.

In response to the indictments, Netanyahu has denied wrongdoing, vowed to stay in his post and fight what he called “tainted” and prejudiced investigations, and accused police investigators and prosecutors of plotting an “attempted coup” to bring him down.

A request from the Knesset for immunity is seen as unpopular among all voters, even among many of the prime minister’s supporters. A poll published Sunday evening by Channel 12 news found that 51 percent of Israelis oppose such a move, while only 33% support it.

But though the premier is far from guaranteed to get a Knesset majority to support an immunity bid, merely asking for it will delay any potential trial by months, and could set up the coming election as a pseudo-referendum on Netanyahu’s innocence.

His request must by weighed by the parliamentary House Committee before it can be voted upon by the plenum, but due to the lack of a functioning legislature amid the ongoing political deadlock, the Knesset will only be able to review and decide on his request after a coalition is formed — if one is formed — following the March 2 election.

Once there is a Knesset House Committee, eventually, the odds that it will grant Netanyahu immunity depend on the makeup of the 23rd Knesset. This is despite the fact that the MKs discussing the merits of the request must not base their decision on personal inclination or coalition discipline but on legal arguments.

According to the 2005 law on immunity, there are four “grounds” that MKs can cite in their bid for protection from legal prosecution. A parliamentarian can request immunity if: a) the alleged crime was committed in the fulfillment of his or her parliamentary duties; b) the indictment is served in “bad faith”; c) the alleged wrongdoing was committed in the Knesset building and was already dealt with within the Knesset; d) prosecution would “cause real damage to the actual functioning of the Knesset or any of its committees, or to the representation of the electorate, and failure to conduct such a proceeding — taking into account the severity of the offense, its nature or circumstances — would not cause significant harm to the public interest.”

These clauses appear wide open to all kinds of interpretations. Did Mandelblit serve the indictment in “bad faith”? Would putting Netanyahu on trial cause “real damage” to his electorate? How “severe” are the crimes he is accused of?

In a recent wide-ranging interview with The Times of Israel, Suzie Navot, a professor of constitutional law at the Stricks Law School in Rishon Lezion, said that Netanyahu could indeed argue that charging him would hurt the will of the people. At the same time, she believes that the law grants immunity to legislators only for minor offenses, and not for the bribery, fraud and breach of trust charges being brought against the premier.

Following is a transcript of part of that conversation, which took place in Hebrew, edited for length and clarity.

Times of Israel: Let’s talk about the immunity law as it stands. What is its true rationale?

Suzie Navot: The purpose of the immunity law is to protect the Knesset and its members — as opposed to members of the executive branch.

Netanyahu is also a member of Knesset.

Yes, but the law is intended to protect his position as an MK. [His parliamentary supporters] want to protect his position as prime minister.

The immunity law is meant to protect the position of MKs, mostly to enable them, like all over the Western world, to express themselves freely, so that one cannot prosecute them over things they’ve said in their parliamentary work.

It’s mainly to protect their freedom of speech, for instance, [regarding] offenses such as incitement, racism, support for terrorism, libel. The State of Israel doesn’t put MKs on trial for such offenses. That’s the core of immunity — to prevent MKs from being put on trial for things they say.

This is called functional immunity, which protects parliamentarians from prosecution for things they did in fulfilling their parliamentary work. This kind of immunity exists all over the Western world.

Let’s look at the text of the law, which has been in place since 1951: “A Knesset member shall bear no criminal or civil responsibility, and shall be immune from any legal proceeding, in respect to a vote, an oral or written expression of opinion, or any other act, in and outside the Knesset, if such vote, expression of opinion or act, pertains to or is directed toward the carrying-out of his [or her] mandate as a member of the Knesset.”

Over the years, the court has interpreted this law to refer to things MKs do as part of their parliamentary work, in particular verbal expressions. This is the court’s legal analysis, exactly like anywhere else in the world. Take, for example, the Speech or Debate Clause of the US Constitution.

Besides this kind of immunity, in some countries — a decreasing number of countries, I should add — there is an additional sort of immunity, which has to do with offenses committed by a parliamentarian that are unrelated to his parliamentary work. For instance, theft, robbery, bribery. This is called procedural immunity, or inviolability.

The courts already established that crimes such as bribery and fraud and breach of trust are not considered part of one’s mandate as MK. What happens to British MPs who take bribes? What happens to lawmakers in the US, and elsewhere, who commit crimes unrelated to their parliamentary works? Most countries don’t grant immunity for such cases.

And what’s the situation here?

In Israel, we have both: immunity for things done within the framework of their function, and also procedural immunity. The latter grants an MK immunity from prosecution for offenses that have nothing to do with his or her function. This procedural immunity, as in other countries, may be lifted by the Knesset.

That’s actually what has happened from when the state was founded until today — the Knesset lifted the immunity of all members of Knesset tried for offenses or crimes that were not part of their function.

Until 2005, the procedure was like this: The attorney general came to the Knesset and said, “Ladies and gentleman, I want to indict someone for bribery.” The Knesset House Committee would then vote to lift the procedural immunity. The Knesset plenary would do the same, and that MK could be put on trial like a regular person.

That procedure changed in 2005, after the Knesset debated the case of Likud MK Michael Gorlovsky, who was caught voting twice in 2003.

In that case, the House Committee refused to lift the immunity, arguing that MK Gorlovsky had already been punished by the Knesset disciplinary committee.

A petition was filed with the High Court of Justice against the House Committee. The court decided unanimously to cancel the committee’s decision.

The court stated that the House Committee can refuse to lift an MK’s immunity only if the attorney general acts in bad faith or in a discriminatory manner.

The court wrote that as a general rule, it will not interfere in Knesset decisions. [But] the court will interfere whenever the Knesset deals with immunity, because the Knesset is assuming a “judiciary” role.

When the Knesset takes upon itself a quasi-judiciary role, or whenever a body acts in a quasi-judicial manner, it’s the Supreme Court’s role to exercise oversight and control the proceeding and the outcome. After the Gorlovsky case, an amendment was passed to the immunity law, which essentially abrogated the need for the attorney general to appear before the House Committee and ask for the removal of immunity.

In line with this amendment, the rule is now that a Knesset member against whom an indictment has been filed will not enjoy procedural immunity. If he requests, on special grounds, to enjoy procedural immunity, he must do so expressly, and only then will a special hearing be held on his request.

Let’s talk about the four “grounds” on which MKs can ask for immunity today. According to the 2005 amendment you mentioned, an MK can request immunity if a) the alleged crime was committed in the fulfillment of his parliamentary duties; b) the indictment is served in “bad faith”; c) the alleged wrongdoing was committed in the Knesset building and was already dealt with within the Knesset; and d) prosecution would cause “real damage … to the representation of the electorate.”

These grounds were never interpreted by the Supreme Court. The Supreme Court will eventually decide if these grounds apply to Netanyahu.

Could Netanyahu argue that Attorney General Avichai Mandelblit is acting in bad faith?

It’s not enough for him to merely make that claim. He has to prove it. He needs to produce evidence — he needs clear and persuasive proof. It has to be a legal argument.

The fourth rationale appears to work perfectly in Netanyahu’s favor… A decision to refuse him immunity could be interpreted as causing “real damage… to the representation of the electorate.”

On the face of it, Netanyahu could certainly try to argue in favor of the use of this paragraph. After an indictment is filed — if filed — the prime minister can ask the Knesset for procedural immunity. That means that he would not be brought to trial during his term.

Let’s take a closer look at what the law says about that fourth reasoning. It states that an MK can request immunity if prosecution “would cause real damage to the actual functioning of the Knesset or any of its committees, or to the representation of the electorate, and failure to conduct such a proceeding — taking into account the severity of the offense, its nature or circumstances — would not cause significant harm to the public interest.” This appears wide open to all kinds of interpretations.

This clause talks, first of all, about damage caused to the Knesset, which, by the way, shows that the law intends to protect the functioning of the legislature, and not of the government.

Then it talks about the Knesset committees, and only then about the “representation of the electorate.” Hence, this phrase may refer to the people’s representatives in the Knesset. The people voted for the Likud party, which is led by Netanyahu. We vote for slates, not for people. Will the representation of the electorate in the Knesset be hurt if Netanyahu is put on trial?

You could argue that the people voted for Likud mostly because of its longtime leader, so the “representation of the electorate” argument appears valid.

I accept that reasoning. Still, I think this article [in the law] was meant to protect parliamentary minorities.

But even if it also refers to the representation of Likud voters, the clause says that immunity can only be given after considering “the crime’s severity,” and if refraining from serving an indictment would not cause significant harm to the public interest.

I think that the idea here is to protect MKs from minor offenses. If a member of Knesset is not prosecuted for a severe crime, the public interest — namely, the rule of law — is affected. That’s why the last segment of the clause explicitly states that the offense’s severity needs to be taken into account.

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