‘Recommendations bill’: Not unconstitutional but highly problematic
Analysis: A law barring police from making recommendations on indictments against public figures will put Prime Minister Netanyahu in an absurd situation, as it will increase the rumors, reports and commentaries on the police’s findings against him. As the bill heads to its final Knesset readings, its opponents are hoping the law be struck down by the High Court due to its personal and retroactive nature.
The “recommendations bill,” which bars police from making recommendations on indictments and passed its first reading at the Knesset on Monday, will likely lead to a constitutional imbroglio if it is enacted into law in its current form, sources in the legal system believe.
Attorney General Avichai Mandelblit would still be able to ask the police for an opinion based on an amendment introduced to the legislation Monday, allowing him to request recommendations in specific cases such as the investigations against Prime Minister Benjamin Netanyahu, but the recommendations would not be made public due to the limitation imposed by the law.
After the bill passes its third and final reading, its constitutionality will likely be challenged by the High Court. Yesh Atid leader Yair Lapid has already announced his intention to file a petition against the law.
The law will likely be struck down by the High Court for three reasons. The first is inequality—the fact it distinguishes between two types of suspects: Public figures, who the police are forbidden to submit recommendations on at the end of an investigation, and common people, who the police are allowed to submit recommendations on.
Two additional reasons are the fact this is a retroactive and personal law, which is being enacted for Prime Minister Netanyahu and will apply to investigations that have already begun. Israeli law isn’t “fond” of retroactive legislation, and all the more so legislation for specific people, as senior as they may be.
Nevertheless, sources in the legal system note that Mandelblit hasn’t deemed the law unconstitutional at any stage, although he firmly opposes it and sees it as a law aimed at protecting Netanyahu. In case of a High Court petition, the attorney general will likely be tasked with defending the law to the court.
At the end of the day, the bill does include some amendments made at the attorney general’s request. One of them is that he would be able to use his discretion in regards to whether and when to probe leaks of investigation findings. Another softened clause is a “transitional order,” which states that in the interim period, in all the investigations that had already begun by the time the law was approved, the attorney general would be able to ask the police to submit their recommendations to him even though they would not be made public.
“It’s an unwise, illogical, annoying and foolish bill,” a senior Justice Ministry official said Sunday. Other senior officials said Mandelblit could still use his authority and ask the investigation team in Case 1000, which focuses on allegedly illicit gifts received by Netanyahu and his wife from billionaire benefactors, to hand over its recommendations, but those recommendations would not be made public. Mandelblit may choose to do so, they said, in a bid to speed up the analysis of the findings and recommendations and reach a decision on the case.
Undermining the public’s right to know
Prime Minister Netanyahu will likely find himself in an absurd situation in the coming months, and he may even lose more than he gains. The “recommendations bill,” which aims to prevent the publication of police recommendations in his criminal investigations, may not only fail in preventing their publication but may even increase the rumors, reports and commentaries on the police’s findings against him.
Like in the Soviet Union, when a police investigation is completed and the investigation material is handed over to the State Attorney’s Office, the country would be filled with rumors and the different media outlets would compete over who publishes more of what they manage to collect. If the law is approved, every public figure would go through this from now on.
As a result, the public could be exposed to inaccurate or untrue information, and the police, the supervising attorney and even the attorney general would be barred from telling the public that the published information is wrong, even if it includes suspicions that were actually refuted in the investigation. And so, until an indictment is filed or until the case is closed, the public figure will be under a cloud of suspicions and rumors.
While the “recommendations bill” may not be unconstitutional, it is highly problematic. The State of Israel raises the banner of the public’s right know, excluding issues of privacy protection and possible harm to state security. The bill basically undermines not only the public’s right to know but also its duty to know.
Former Chief Justice Moshe Landau stressed in his rulings that citizens have the right to know as much as possible about the state’s leaders before making a decision on who to vote. Before casting its vote, the public must be aware of the offenses the police believe a party leader or any other candidate running in the elections should be indicted for.
The “recommendations bill” further violates two of the biggest taboos in Israeli and Western law: Personal laws and retroactive laws. In this respect, the “recommendations bill” is fully adjusted to Prime Minister Netanyahu's needs.
The law is also expected to increase the foot-dragging in the State Attorney’s Office decision-making process. The lack of recommendations in a public figure’s investigation, which holds political and national ramifications in the case of an incumbent prime minister, would only push the final decision further away.
The team of attorneys handling the case would be forced to analyze the evidence from the very beginning, come up with a clear and coherent picture and form their recommendations ahead of a decision—a process that could take many months and even years and lead to major obstruction of justice.
