Political stalemate could see Netanyahu’s formal indictment delayed by months

Netanyahu could be required to immediately let go of his 4 other ministerial posts, but AG can’t formally file indictment before Knesset discusses a potential request for immunity

Raphael Ahren

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

Prime Minister Benjamin Netanyahu in Jerusalem, November 5, 2019. (Marc Israel Sellem/Pool/Flash90)
Prime Minister Benjamin Netanyahu in Jerusalem, November 5, 2019. (Marc Israel Sellem/Pool/Flash90)

Attorney General Avichai Mandelblit on Thursday announced his final decision to indict Prime Minister Benjamin Netanyahu on three different corruption charges, but due to the current political deadlock it will probably take several months before he can even formally file the charges in court.

In the likely case that no Knesset member garners the support of 60 colleagues in the next three weeks that would allow him or her to take a shot at forming a government, thus sending the country to repeat elections, the beginning of Netanyahu’s trial could be delayed until late April, or even until the end of May.

According to Israeli law, Netanyahu can likely legally continue serving as prime minister until he’s replaced through an election or until he’s convicted. No sitting premier has ever been indicted, and therefore it is unclear how the High Court of Justice would react to the many appeals that will demand he resign.

However, according to legal experts, he could be required to immediately relinquish the four ministerial posts he currently holds.

As of today, Netanyahu holds the agriculture, health, social affairs and diaspora affairs portfolios. According to legal precedent, a minister cannot continue to serve under indictment.

What else happens now?

From the moment Mandelblit informs Knesset Speaker Yuli Edelstein of his decision to indict the prime minister, expected in the coming days, Netanyahu has 30 days to decide whether he wants to ask the Knesset for parliamentary immunity.

Attorney General Avichai Mandelblit in the Knesset, December 3, 2018. (Miriam Alster/Flash90)

“He [Mandelblit] cannot file charges. He has to present the indictment to the speaker and then wait for Netanyahu’s decision whether he wants procedural immunity or not,” according to leading constitutional scholar Suzie Navot.

If immunity is not granted, the state prosecution will formally issue the indictment in the Jerusalem District Court. According to Israeli law, indictments against a prime minister have to be filed at the Jerusalem District Court, where three judges will rule on it.

Until 2005, lawmakers enjoyed automatic immunity, but the law has since changed and now a parliamentarian who is about to be indicted will need to convince colleagues that he or she is deserving of procedural immunity.

As opposed to functional immunity, which protects lawmakers from prosecution for crimes committed in fulfilling their parliamentary work, procedural immunity, or inviolability, relates to unrelated offenses such as murder, rape or bribery.

If Netanyahu decides that he wants procedural immunity, the Knesset House Committee, and later the entire plenary, will debate the merits of his requests and then vote on it. However, due to the present political stalemate and the lack of a functioning government coalition, there currently is no House Committee, which means that Netanyahu’s immunity cannot be discussed.

Leading Israeli constitutional law professor Suzie Navot (courtesy)

“He just has to say that he wants the immunity and then only when a new government is formed and the Knesset House Committee starts working will they’ll deal with it… months from now,” said Navot, a full professor of constitutional law at the Stricks Law School in Rishon Lezion.

A third round of elections would likely be held in mid-March 2020, and it usually takes about two months until a government is sworn in. If the first candidate trying to cobble together a coalition fails, and a second person tries his or her luck, it can take up to three months. A functioning Knesset House Committee would only be formed in April or May.

The Knesset Arrangements Committee, which is in charge of the make-up of the parliament’s permanent committees, is currently controlled by the opposition Blue and White faction. But according to Navot, the House Committee, as opposed to the Foreign Affairs and Defense Committee, cannot be convened on a temporary basis but only after the Knesset has been formally divided into coalition and opposition.

However, according to Amir Fuchs, who heads the Defending Democratic Values Program at the Israel Democracy Institute, Mandelblit could argue that, in the continued absence of a House Committee, he can file an indictment even without a debate over immunity.

“It’s possible. A transitional government that goes into election after election — that’s a situation that has no precedence,” Fuchs told The Times of Israel on Thursday.

“In my view, one could interpret the law as saying that the attorney general has the authority to file an indictment in a case which the Knesset doesn’t make use of its right to create a committee to discuss immunity. After all, the default is that a MK doesn’t have immunity.”

House Committee chairman MK Miki Zohar leads a discussion on voting on a bill to dissolve the Knesset on May 28, 2019. (Noam Revkin Fenton/Flash90)

On the other hand, Netanyahu could argue that everyone has the right to have the Knesset consider his or her request for immunity, Fuchs said. Whether Mandelblit has the right to forgo this privilege in light of the political situation is unclear.

Navot, who wrote her 1997 doctoral dissertation about parliamentary immunity, is convinced that the attorney general is unable to abrogate Netanyahu’s right to request immunity.

Will the Knesset grant Netanyahu immunity?

Once there is a House Committee, what are the odds that it will grant Netanyahu immunity? In the event of a third election, that will of course depend on the makeup of the 23rd Knesset. This 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 about immunity, there are four “grounds” which 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?

What happens if Netanyahu is granted immunity?

Since the law was changed 14 years ago, the Knesset has never given a criminal suspect parliamentary immunity, according to Fuchs. If Netanyahu ends up being the first one, his political opponents can file an appeal against the Knesset decision to the High Court of Justice.

If the court rules in Netanyahu’s favor, or chooses not to intervene, it would be impossible to indict him as long as he’s a member of Knesset. As soon as he stopped being an MK, he could be prosecuted, according to Fuchs. “It’s basically a postponement,” he said.

In other words, if Netanyahu wins immunity and remains in the Knesset for many more years, he could still be put on trial on the day after his term as lawmaker ends.

But there will be a great deal of political and legal maneuvering and argument before we get anywhere near that.

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