Legal Analysis / Hanegbi Isn't Alone

Political appointments will disappear from Israeli life entirely only if democracy itself ceases to exist.

Three judges of the Jerusalem Magistrate's Court - a rare panel for this court - will hand down their verdict today in MK Tzachi Hanegbi's trial for political appointments made while serving as environmental protection minister. The court will have to walk the fine line between politics and law and determine when a political appointment crosses the line from gray to black, thus tainting a common political act with a criminal hue.

If the court deems any or all of Hanegbi's appointments a criminal offense, it would be setting a global precedent. In his soon-to-be published book "The Language of Corruption," Prof. Yossi Shain shows that other countries do not view political appointments as an offense and argues that doing so would hinder the fight against real corruption.

Former minister Tzachi Hanegbi
Kobi Gideon / BauBau

What is clear, however, is that Hanegbi is not alone. Indeed, some types of political appointments are officially recognized - for example, the appointments of certain ambassadors and consuls.

The prosecution's decision to call more than 300 witnesses to the stand over the course of 70 hearings stretched the trial out for four years. In the interim, it seems that the number of political appointments - meaning those that would not have been made were it not for the appointee's political connections - has dropped. But it also seems that political appointments will disappear from Israeli life entirely only if democracy itself ceases to exist.

The indictment includes various charges, but focuses on breach of trust and election bribery. The latter refers to an appointment intended to influence someone to vote for a given candidate in a public organization's internal elections. This offense, whose maximum penalty is a year in prison, is far less grave than regular bribery, whose maximum penalty is seven years.

A conviction would require the judges to decide that a political appointment can be seen as a criminal breach of the public's trust and/or as election bribery. It would also require them to conclude that criminal intent was proved beyond all doubt. At the least, such proof requires the defendant to have been aware of the conflict between his official position and his personal interests.

The verdict will deal with the "seam line" that runs between law and politics. If Hanegbi, one of Israel's most talented and respected politicians, is acquitted, all public doors will be open to him. But even a conviction on some or all of the counts would not block his political career if the court rules that they did not entail moral turpitude. This seems likely, given that political appointments are a common practice that had never before led to criminal charges.

Haim Ramon's appointment as a minister after being convicted of a sexual offense could serve as a relevant precedent, despite the difference in the nature of the respective offenses. In December 2007, the High Court of Justice rejected a petition against Ramon's appointment, saying that since the court that convicted Ramon had ruled the offense did not involve moral turpitude, it saw no grounds for deeming the appointment so unreasonable as to be illegal.

Even if Hanegbi is convicted today, it seems unlikely that the verdict will include a ruling on whether his acts involved moral turpitude. The turpitude issue - whether at the attorney general's request or at the court's initiative - will be decided only at the sentencing stage, if there is one.

But should the attorney general argue that Hanegbi's political conduct did involve moral turpitude, the issue is liable to become the focus of a whole new legal battle.