Analysis

Enabling Netanyahu's Government Could Be Bribe-taking

Two prior court rulings have invalidated coalition agreements and it could happen again given the offers being made over the table

Prime Minister Benjamin Netanyahu during coalition talks in Jerusalem, April 30, 2019.
Olivier Fitoussi

Could a coalition agreement in which party heads promise the prime minister a personal benefit – say, immunity from prosecution – in exchange for cabinet portfolios and funding, be considered bribery? Based on two court rulings, the answer could be yes.

April 1990 brought the failure of the “stinking maneuver” – a political initiative cooked up by then Labor Party leader Shimon Peres to bring down the government of Yitzhak Shamir and replace it with his own government, with the help of five Likud deserters, members of the Liberal party. But the Liberals ended up returning to Likud and Shamir set up a new coalition.

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Because of suspicion between Shamir and Yitzhak Moda’i, then head of the Liberal faction, an unusual coalition agreement was signed that included commitments by the parties to put up financial guarantees for its implementation. In one clause, Likud gave up debt claims against the Liberals. The High Court of Justice was asked to rule on the legality of the agreement.

The majority ruled that the financial clauses in the agreement had to be scrapped. Supporting the ruling were two justices whose worldviews were total opposites – Menachem Elon, one of the great opponents of judicial activism in those years, and Aharon Barak, who would soon lead the constitutional revolution that would allow the High Court to strike down laws.

“Giving a financial benefit in political relationships as a means of obtaining power or providing it is improper and invalid .… Giving or receiving a personal benefit smacks of being unequivocally illegal,” Elon wrote. Barak added: “One mustn’t combine providing a material benefit to the elements of a government in exchange for preserving the government.”

The ruling did not lead to a criminal investigation at the time. But the principles set down in the ruling were applied in a criminal proceeding in 2005, when former Hadera Mayor Yisrael Sadan and four city council members were charged with bribery. The coalition agreements Sadan had signed with three factions on city council had included financial commitments, including a promise to find jobs for faction cronies in the municipality in exchange for supporting the coalition. Haifa District Court Judge Ilan Schiff convicted the five and their sentences included prison terms.

When one of the councilmen, Avraham Baldav, appealed his conviction to the Supreme Court, his appeal was denied by another Elon – Yosef, Menachem Elon’s son, who had been temporarily appointed to the court – and Justice Ayala Procaccia.

“Distributing jobs in a coalition agreement is not invalid in and of itself, when it serves as a way to implement the faction’s platform and is aimed at advancing the voters’ interests. But when a political agreement is accompanied by a promise to grant a special material benefit for joining the coalition, aimed at strengthening the political power of the person making the promise, such a promise has the earmarks of buying power with money ... Such agreements involve bribery,” the court ruled.

It should be noted that Yosef Elon is now part of Prime Minister Benjamin Netanyahu’s legal defense team, and his name has been raised as a possible candidate for state comptroller.

Both of the rulings cited here ought to disturb the party heads who are conducting the current coalition negotiations. They may think that the proposal they are considering – immunity for cabinet portfolios – is legitimate and simply part of acceptable the political give- and-take, but that’s not so certain.

There is no doubt that for Prime Minister Benjamin Netanyahu, the immunity initiatives being discussed can be defined as a “benefit.” They may not be material, but bribery laws do not require that the benefit be material. In return, they receive appointments, budgets and power from Netanyahu. The fact that the offers are being made over the table and via written agreements doesn’t change anything, as demonstrated by the court convictions of the Hadera officials.

Moshe Kahlon, Avigdor Lieberman, Rafi Peretz, Bezalel Smotrich, Arye Dery and Yaakov Litzman, and even Yariv Levin, who is directing his Likud party’s coalition negotiations, all must understand that what’s going on in the negotiating room puts them at personal risk.

The person absent in all this is Attorney General Avichai Mendelblit, who hasn’t said a word to the parties despite the heavy media coverage of the evolving immunity-for-portfolios deal. Mendelblit is on a working visit to Tokyo about which the Justice Ministry isn’t saying much. But perhaps someone should call Mendelblit and remind him of things Justices Elon and Barak said in their 1990 ruling about the attorney general’s role in preventing illegal coalition agreements.

That discussion of the role of the attorney general revolved around whether the fact that the petitioner challenging the arrangement did not first approach the attorney general – who could have informed the parties that the agreement they were signing was illegal – should lead to the dismissal of the petition. Elon wrote that it would be easy to dismiss the petition due to the lack of prior consultation with the attorney general, but that he decided to continue hearing the petition despite the flaw. Barak, meanwhile, didn’t think it was a flaw. Either way, both agreed that it was the attorney general’s job to examine coalition agreements and inform the cabinet of the illegal clauses included in them.

The 1990 case was not the only one in which the High Court of Justice was asked to invalidate a coalition agreement. Another instance also related to efforts to restrict the power of the High Court. When the second Yitzhak Rabin government was established in 1992, Labor and Shas signed a coalition agreement in which Rabin promised that if the High Court would ever issue a ruling that violated the status quo on issues of religion and state, his government would advance legislation that would negate the High Court ruling.

In response to a petition against the agreement, an expanded panel of five High Court justices deliberated on the issue, until a ruling emerged that was mostly written by the Supreme Court president at the time, Meir Shamgar. Despite the extensive criticism of the agreement, the court let it stand. Shamgar took the opportunity, however, to sketch out the circumstances under which the court could intervene. Such circumstances, he said, would be present “if the risk of harm to personal integrity or the integrity of governmental considerations arises [of if it involves] the negation of the existence of the State of Israel as the state of the Jewish people [or] the negation of the state’s democratic character.”