Attorney General Menachem Mazuz appears to be in a catch-22. If he decides not to place the prime minister on trial, and the decision is overturned by the Supreme Court, or the decision is not overturned but it is proved that Mazuz was wrong, the result will be a tremendous blow to his status. If he decides to place the prime minister on trial, thus ending his term of office, and the prime minister is eventually acquitted, that could be the end of Mazuz's career.
For this reason, some jurists have argued in the past few days (and it has been intimated that this is also the fundamental position of the attorney general) that the prime minister should be placed on trial only if there is sufficient evidence to ensure his conviction.
A decision based on that principle is problematic, for at least two major reasons. First, it undercuts the principle of equality before the law. The standards that should be applied to public figures and politicians should be the same as those used in relation to ordinary people - what's known in Israeli jurisprudence as the "Buzaglo test." Second, if the principle is adopted, the attorney general will be assuming the role of judge and will effectively replace the court. The role of the attorney general is to submit indictments when he believes there is sufficient evidence to show there has been a violation of the law and that a conviction is highly probable (though not 100 percent probable). The court is the body that's empowered to make the final decision concerning the guilt or innocence of those brought before it.
On the other hand, there is something to be said for those who espouse a strict attitude regarding an indictment and who argue that the very submission of an indictment against the prime minister will in itself constitute a severe punishment that will take the form of the cessation of his term of office and possibly also the end of his political career.
Is this really a catch-22, though? Not necessarily. There is a third part to the equation, which is agreed on by both sides in the debate and which is, in fact, assumed to be axiomatic: that if the prime minister is indicted he must resign. This is the weak link. The law does not oblige him to resign. According to the Basic Law on The Government, even if the prime minister is convicted of an offense bearing moral opprobrium, he is not obliged to automatically resign. It is the Knesset that has the power, by majority vote, to remove him from office.
Although the law does not oblige a cabinet minister who has been indicted to resign, either, the High Court of Justice asserted a few years ago that in this situation a minister must, in fact, resign. That decision appears to have been mistaken. Indeed, in an ideal world it would be preferable if a publicly elected official or a public official who has been charged in court should not stay in office while his trial is under way. However, if the price is avoidance of submitting an indictment, or the application of standards different from those that are applied to each of us, it is best to choose the imperfect solution. It should be pointed out that in most countries the obligation to resign when an indictment is submitted does not exist - resignation is mandatory only after a conviction.
In regard to Ariel Sharon, it can also be argued that even now, with the sword of an indictment hovering over him, his performance cannot be optimal, and this situation will not change greatly if an indictment is filed. Therefore, the obligation of the prime minister to resign if he is indicted is illogical and undesirable, and its annulment will make it possible for the attorney general to take into account the regular considerations in regard to filing an indictment - which will be applied on an equal basis, and without the AG turning himself into a judge.
The writer is a law professor at the University of Haifa.