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Source: US Global Legal Monitor

(Nov. 9, 2020) On November 5, 2020, Israeli prime minister (PM) Benyamin Netanyahu submitted an objection in Israel’s Supreme Court to a legal opinion issued three days earlier by the Office of the Attorney General (AG) regarding conflict of interest rules that would prevent the PM from using his position to influence his upcoming corruption trial. Netanyahu has been charged with fraud, bribery, and breach of trust, with the trial scheduled to begin in January 2021 before the Jerusalem District Court.

The AG’s opinion clarifies that the rules that apply to the PM equally apply to other officials in the PM’s office who assist the PM in positions of trust. (Opinion §§ 38–44.)

In accordance with section 18 of Israel’s Basic Law: the Government, as amended, if the PM is convicted of an offense defined by the court as involving moral turpitude, the PM can be removed from office by a majority vote of Knesset (Israel’s parliament). If the Knesset decides not to remove the PM from office, the PM will cease to serve in office, and the government will be considered to have resigned upon a final conviction. In such a case the PM may continue to serve in office until he or she has exhausted all possibilities of appeal.

Government Appointments

In accordance with the opinion, the PM is banned from making decisions concerning appointments and promoting legislation concerning the authorities of high-ranking officials in the law enforcement system, including the AG, the police commissioner and state prosecutor, investigators of the police and the Securities Authority who handled his case, and Supreme Court justices and Jerusalem District judges. (Opinion § 4.)

Legislative Proceedings

The opinion states that the PM must refrain from interfering in government proceedings involving legislative amendments that directly relate to the offenses he or others are charged with in the same case; specific aspects of the charges against him; and certain investigative proceedings, the law of evidence, and “legislation concerning the very existence of the criminal procedure or its consequences.” (§ 29.)

The PM’s involvement in legislative proceedings on such matters, according to the opinion, may be informal or indirect. This includes governmental initiation and formulation of government bills and proceedings in the Ministerial Committee for Legislation on private members’ bills. Accordingly,

[t]hrough setting norms in criminal law and criminal procedure law (as well as through legislation conferring immunity or clemency), the legislature may in fact address ongoing charges against the prime minister and perhaps even influence them. Legislative changes may even have an impact on how the law will apply to the prime minister directly and personally, or to the interpretation given to the offenses with which he is charged. (§§ 26–27.)

Ministry of Communications Activities

According to the opinion, some of the witnesses mentioned in the trial are civil servants, including a number of witnesses working in the Ministry of Communications (MOC). Some of the incidents mentioned in the indictment that may be adjudicated in the criminal trial similarly revolve around MOC regulatory decisions.

It is unavoidable that certain decisions currently under discussion in the Ministry of Communications will be related to some extent to the decisions of the Ministry of Communications mentioned as part of the charges against the prime minister. … [I]t is not possible to rule out the possibility that in certain circumstances, a decision will be on the table in which there is a reasonable concern of a conflict of interest because [the decision] is directly connected with the law, given the facts set out in the indictment and the defense arguments. (§§ 32 & 34.)

To address this concern, the MOC’s legal adviser is requested to inform the AG’s office of any significant policy procedures in the ministry, as well as of any matters that in her opinion may affect the trial. The decision as to whether it is necessary to instruct the PM to refrain from involvement in such matters will be made by the AG or the Deputy AG on his behalf. (§ 35.)

PM’s Objections

According to an Israeli media report, the opinion reflected an agreement reached between the PM’s attorneys and the AG’s attorneys “on most issues.” However, in the objection that the PM filed with the Supreme Court, the PM claimed that the law “doesn’t grant the attorney general authority to determine whether some issue or another has a conflict of interest. The person who can determine this is the prime minister, not the attorney general.”

The PM also objected to the ban on his dealing with appointments, appointment procedures, or the status of officials in the law enforcement system, claiming that “there is no place for the said limitations in the clause regarding the involvement in the appointments method. … This is an issue that is an important part of the coalition agreement and the political arguments in the Knesset, and imposing restrictions on the prime minister in this issue will infringe on implementing the voter’s wishes.”