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Israel: Facing Criminal Trial, Prime Minister Finds Authority Limited by Supreme Court Decision Upholding Attorney General’s Conflict of Interest Opinion

(Apr. 2, 2021) As Israeli Prime Minister (PM) Binyamin Netanyahu faces hearings scheduled to begin on April 5, 2021, in his criminal trial for charges of bribery, fraud, and breach of trust, he finds his prime ministerial authority limited by a recent decision of the Israeli Supreme Court, sitting as a High Court of Justice (HC). (HC 3056/20 Movement for Quality of Government in Israel v. Attorney General (AG) (main decision by Court President Esther Hayut, with Justices Hanan Melcer and Neal Hendel concurring), State of Israel the Judicial Authority, March 25, 2021.)

Circumstances

The indictment against Netanyahu was filed with the Jerusalem district court in January 2020. On May 6, 2020, the HC ruled that, despite the pending indictment against him, there was no legal basis to prevent the president from assigning government formation to a Knesset member indicted for alleged criminal offenses. In its reasoning, the HC took into consideration the AG’s announcement that Netanyahu’s term as PM would be subject to “restrictions regarding the performance of his duties in matters relating to the law enforcement system.” The subjection of Netanyahu to a conflict of interest arrangement was confirmed by his representative both in writing as well as in the oral argument before the HC. The parties have not reached an agreement on the content of the arrangement. Petitioners requested that restrictions included in a draft opinion that had been prepared by the Ministry of Justice at the time regarding a conflict of interest arrangement that would apply to the PM be enforced. On November 2, 2020, the AG issued a final opinion on Netanyahu’s conflict of interest arrangement. The HC issued a temporary injunction in response to the petitions. Netanyahu objected to the authority of the AG to issue the final opinion and to its content.

AG’s Opinion

The AG’s opinion includes restrictions on the PM’s activities in regard to decisions concerning the law enforcement system and police, prosecutorial, and judicial appointments, decisions concerning specific witnesses and other defendants in his trial, and activities relating to the regulation of the communications market or legislation directly affecting the criminal proceedings against the PM. The HC addressed whether the AG’s opinion binds the PM.

Decision

According to Hayut, the principle prohibiting a person who holds public office from being in a state of conflict of interest is rooted in the Israeli legal system and is based on rules of natural justice applicable to administrative law. A circumstance in which a PM serves in office while facing an indictment for serious offenses involving moral turpitude is an exceptional circumstance that requires strict adherence to the principle. Therefore, Hayut stated, it is necessary to have a conflict of interest arrangement that will ensure “both in terms of receipt of actual decisions and in terms of public visibility [that] the personal matters pertaining to the indictment of the PM will not affect his function as the head of the executive branch.”

Hayut held that ensuring that government agencies operate lawfully was one of the AG’s main responsibilities. The AG is not a “government servant” but rather a public servant who is supposed to “advise the government, so that it can fulfill its role within the law, and supervise the government, so that it does not deviate from the law.” The HC has previously held in numerous cases that the AG’s legal opinions bind the government unless the Court holds otherwise. While binding the PM, Hayut clarified, the conflict of interest arrangement issued by the AG is a personal arrangement designed to ensure that Netanyahu can fulfill his duties impartially, and does not apply to the minister of public security, to whom some of the relevant powers in question were transferred.

Hayut recognized that the PM is also legally barred from arguing against the authority of the AG to issue the opinion regarding the conflict of interest arrangement and against its binding effect. This is because of his previous statements, based on which the Court rejected a petition against his assignment to form the outgoing government.

While concurring with Hayut that the AG’s opinion on legal matters binds the government, Justice Melcer added:

It seems, however, that no one would disagree that the authority to determine the conflict of interest arrangement . . . is in the hands of the Attorney General at least for preventing the entry of the PM to a state of incapacity under section 20 of the Basic Law: Government. Such a declaration of incapacity (like the authority to file an indictment against a PM under section 17 of Basic Law: the government) exclusively belongs to the AG.

Although Melcer’s statement recognizing the AG’s authority to declare the PM’s incapacity based on a violation of rules of conflict of interest may not be viewed as a judicial ruling by itself, it might signal potential determinations on this topic in the future.