Law enforcement officials had a vociferous debate in 2004 when then-Prime Minister Ariel Sharon was accused of receiving a bribe in the so-called Greek island affair.
State Attorney Edna Arbel was adamant that there were sufficient grounds for an indictment against Sharon. A draft indictment was prepared, and the only thing needed for a trial to go forward was Attorney General Meni Mazuz.
However, unlike Arbel, Mazuz was not so sure. He said the evidence gathered by the Israel Police did not even come close to the threshold needed for an indictment. Tempers flared at the Justice Ministry during the debate. But ultimately Mazuz put his foot down and declared: "There are those whose job it is to issue recommendations and there are also those whose job it is to decide." Of course, it is the attorney general who has the final say when it comes to indictments in such cases.
If the attorney general can overrule the state attorney, as happened then, he is definitely allowed to ignore recommendations by the police. Under Israeli law, deciding on an indictment is the attorney general's exclusive prerogative. Of course, the views of senior law enforcement officials do carry weight, and the attorney general does have to consider these when he makes this decision.
But the decision ultimately rests with him, and he must exercise this authority with moderation, without prejudice, and with an open mind. It is no coincidence that such matters, which in some respects are on the same scale as capital cases, are handled by the chief law enforcement official at the Justice Ministry.
It is not surprising that the committee tasked with defining the criteria for screening potential attorneys general recommended that candidates must have the qualifications to serve on the Supreme Court. One cannot overestimate how heavy the burden is on the attorney general's shoulders and the sound judgment he has to exercise, especially when the case involves a prime minister.
The Basic Law: The Government stipulates that ministers can continue to serve in the cabinet, even if they are indicted for major offenses, until they are convicted. Even then, they only have to step down if their sentence carries a prison term and a moral turpitude clause.
In the 1990s, the High Court of Justice set a precedent when it ruled that ministers cannot continue to serve when they are indicted for bribery and similar offenses. But the ruling did not mention cases involving the prime minister because such office holders are different and their resignation triggers the resignation of the entire government.
That is why Israeli law sets a higher threshold for when a prime minister must resign: only after he has been convicted and the appeals process has been exhausted, and only if a moral turpitude clause has been attached to his sentence. A majority vote by the Knesset can remove a convicted prime minister from office even before the appeals process has been exhausted, but only if he has a moral turpitude clause in his sentence.
If police findings were enough to bring down a government in Israel, there would be no need for a State Attorney's Office, an attorney general, or the courts. The fact that this is not the case means that those who drafted the law wanted to ensure a government's fate would not be determined by jsut one entity. Thus police recommendations should be taken into account. But should their recommendations decide a case? No.
The Greek island affair taught us that police recommendations and draft indictments prepared by the state attorney are not sufficient to decide the fate of a prime minister in Israel. Some entities recommend, others decide. Let's keep it that way.
