In the forest that is the Jerusalem Magistrate's Court's ruling yesterday acquitting MK Tzachi Hanegbi on charges of making improper political appointments (whose summary runs for 70 pages ), the trees stand out in Israel's political jungle.
Political appointments as a criminal offense: In drawing the line between a "gray" ethical flaw and a "black" criminal act, the legal battle was waged before a three-judge panel of the Jerusalem Magistrate's Court. Two of the judges firmly firmly backed the stand that political appointments are improper from a public standpoint and constitute a criminal breach of trust if they do material harm to the public's trust in the integrity of the civil service.
Ministers, be careful whom you appoint: Anyone who thinks the lesson to be learned on political appointments from Hanegbi's acquittal is that "anything goes" is making a mistake. In principle, it's enough to pass along a candidate's resume to a ministry's professional staff and follow up on the outcome of a political associate's candidacy to constitute a criminal offense. Hanegbi was acquitted by the skin of his teeth. Only a single judge acquitted him. Another judge rightly decided to drop the indictment against him "in the interest of justice." The second judge was of the opinion that it was somehow irrational to convict Hanegbi when "that's what everyone does," but there was not a word about the criminal nature of his acts.
The writing on the wall: Since Hanegbi was forced to stand trial, the number of political appointments has dropped considerably. It would be appropriate for things to stay that way after his acquittal. In fact, ever since the Roman emperor Caligula appointed his horse as consul, it seems nothing would come as a surprise in civil service appointments, but state comptrollers in their reports have prepared a foundation for public disapproval of the practice, and the High Court of Justice has done its part, too. Now, the Magistrate's Court has come along and made the practice a criminal offense when the appointees do not have special qualifications or when job appointments are just open to various political backers.
Political dismissals: For the first time, the court's decision paints the dismissal of employees when a new minister takes office (a common and well-known phenomenon ) with the tinge of criminality. After Hanegbi was appointed environmental protection minister, the judges noted, six employees who had come to the ministry through manpower agencies, almost all by virtue of ties with outgoing minister Dalia Itzik, were dismissed. They were replaced by people "with political ties to Hanegbi." The conclusion is that one must be careful not only in whom one appoints but also in whom one fires. Political dismissals can also be considered a breach of public trust and provide the basis for an indictment.
The civil service: The summary opinion here should be studied by university humanities departments and law schools, as well as by politicians and anyone planning to be one. The summary's descriptions provide a handbook for a minister just starting out who may be thinking of padding his ministry with cronies, even at the junior level. He would be taking a criminal risk in various ways.
These descriptions task the attorney general and the civil service commissioner to study existing loopholes and set rules to allow ministers to deal with truly important matters and leave appointments to the professional staff. That could make it easier for ministers to break free from political associates on the ground that appointments could get them into trouble with the law.
The prosecution: Menachem Mazuz, the preceding attorney general, sought to create a judicial precedent to the effect that political appointments, or those in which the primary motive is political, would be deemed not only ethically flawed but also criminal. The state prosecution succeeded in accomplishing this with a majority of the panel despite Hanegbi's acquittal on everything but the perjury charge.
The remarks of one of the judges, Yoel Tsur, should not be ignored. He noted foul-ups in the investigation that should have made the prosecutors think twice about whether it was appropriate to file an indictment before warning that they had changed the rules of the game. He said that even if the probe was, in his opinion, "selective and slanted" or just a violation of [the accused's] fundamental right to prior warning," as the other two judges, Aryeh Romanoff and Oded Shaham, believed, it was appropriate to ponder whether it was right to file an indictment instead of using other means to deal with political appointments.
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