Don't Jump to a Finding of Moral Turpitude

It should be recalled that the decision to convict MK Tzachi Hanegbi of perjured testimony and filing a false affidavit was only supported by two of the three judges in his case rather than by unanimous decision.

The Jerusalem Magistrate's Court is due to hand down its sentence shortly on MK Tzachi Hanegbi, who was convicted of perjury and making false statements in an affidavit. Based on a decision by Attorney General Yehuda Weinstein, the prosecution in the case has sufficed with a request to sentence Hanegbi to probation rather than a jail term, but it has also asked that the court find that Hanegbi's offenses involved moral turpitude.

FRIENDS IN HIGH PLACES: Tzachi Hanegbi and his wife in court in July 2010.
Tomer Appelbaum

In keeping with Weinstein's view, the prosecution took its position not only because of the seriousness of Hanegbi's actions but also as a result of the circumstances of the case, in that it involved lying both in his oral testimony and in the written affidavit he provided to the chairman of the Central Elections Committee, a Supreme Court justice.

The judges of the magistrate's court are to address two separate issues in their sentencing of Hanegbi. One is the matter of punishment, which involves a classic judicial decision in which the circumstances of the offense are weighed against the circumstances of the offender. The Basic Law on the Knesset would not bar Hanegbi's election to the next Knesset if he is not sentenced to actual prison time.

The second issue the court will address is whether moral turpitude is at play. In that context, the judges need to decide a question that is one of values and ethics rather than a legal one. The challenge is to make a distinction based on the assumption that not all prohibited acts justify a finding of moral turpitude.

Prior to his appointment, the attorney general sounded the alarm over the absence of proportionality in the way the actions of all politicians were labeled 'government corruption'. In his new book [in Hebrew] "Sfat Hashchitut" ("The Language of Corruption" ), Yossi Shain complains that the rhetoric in Israel directed at politicians over the issue of corruption has become "unrestrained and has turned into a dangerous obsession."

Indeed even those people, such as myself, who believe that local and national politics are frequently tainted with dangerous forms of corruption and should be combatted as vigorously as possible, are aware of the need not to be hasty in labeling every action as corrupt and grounds for a finding of moral turpitude. This is because one must consider the fact that an individual who is found to have acted with moral turpitude is, by virtue of a large number of laws, barred from serving in a number of public posts. Those posts include that of a government minister, head of a local authority and a member of the board of directors of a government corporation.

Due to the harsh consequences of a finding of moral turpitude, the High Court of Justice stated explicitly about two years ago that an act that involves moral turpitude constitutes an "ethical flaw," existing only in a situation in which particular damage, "more severe than usual has been done to ethical principles." A finding of moral turpitude is usually not necessarily a result of the severity of the offense itself, but rather a product of the circumstances of the incident. It will be determined "in light of society's customary standards" as determined by the court.

The Basic Law on the Knesset reflects a strange inconsistency when it comes to Knesset members whose acts have been found to involve moral turpitude. By law, such a finding by the magistrate's court now, which is subject to appeal, would result in Hanegbi's immediate suspension as a Knesset member, but it is not enough to bar him from serving in the next Knesset as long as he is not sentenced to an actual prison term. On the other hand, a finding of moral turpitude would bar him from serving as a cabinet minister.

So in Hanegbi's case, the court is faced with a difficult decision on the issue of turpitude, particularly in light of its harsh effect on the freedom of occupation of a public figure. The severity of the acts and their circumstances, including the prosecution's stance, should be weighed against the fact that Hanegbi was acquitted of election bribery and of the major charge of making political appointments and it is clear the indictment would not have been filed on the perjury charge alone.

It should be recalled that the decision to convict Hanegbi of perjured testimony and filing a false affidavit was only supported by two of the three judges in his case rather than by unanimous decision. It seems that fact is relevant to a decision on the turpitude issue, a finding of which does such harm to someone for whom politics is his trade.

A finding of an absence of moral turpitude, as was made in the forcible kissing case against former minister Haim Ramon, does not justify the act or expunge the conviction. All that it means is that it is not an act that disqualifies the person who committed it from coming before the law-abiding public and taking public responsibility. This test is what caused late Supreme Court Justice Haim Cohn, Mr. Human Rights, to warn the courts about jumping to a finding of moral turpitude for criminal acts.