The King Can Do No Wrong

The less authority a head of state has, the broader his immunity and the harder it is to try him.

The queen of England, Queen Elizabeth II, cannot be tried or summoned to testify in court. The guiding principle, explains Prof. Shimon Sheetrit of the Hebrew University, is "the king can do no wrong." In Spain too, the king has complete immunity. The sweeping immunity granted to kings, princes, heads of state and royalty essentially places them above the law: While a president can be tried after completing his term or being impeached, a king is king for life.

Prof. Claude Klein of the Hebrew University law faculty says that the more authority a head of state has, the less immunity he receives. Symbolic heads of state, such as kings or presidents in parliamentary regimes, tend to receive broader immunity based on the presumption, "He has no authority, so what can he really do?" A president with authority, explains Klein, "cannot be protected so completely, because if you do not provide an option for impeachment, that contradicts every democratic process."

Comparative documents prepared by the Knesset's Research and Information Center and the Israel Democracy Institute indicate that in cases around the world, the process of impeaching or trying a president is very complex, and necessitates a special parliamentary majority. The process varies from country to country, and in some cases, it is nearly impossible to try the president.

In Germany, the president can be impeached if he intentionally violates the constitution or federal laws, but this requires the approval of two-thirds of one of the houses of parliament. In Ireland, a decision by a two-thirds majority of one house is required to investigate a president for inappropriate behavior. The other house of parliament then launches the investigation, and it too must approve the impeachment by a two-thirds majority in the end. In Greece, as in Israel, a sitting president cannot be tried, and he must be first removed from office. This requires a two-thirds parliamentary majority.

In Austria, the two houses of parliament must convene together in order to start legal proceedings against the president. Impeachment requires another decision by the assembly, with a two-thirds majority plus a national referendum. However, the process is a big gamble: If the impeachment is rejected in the referendum, the parliament is dissolved. In the Czech Republic, the president may not be either tried or arrested for a criminal offense, except for treason. Italy's president has immunity for every crime except treason or attempting to undermine the constitution.

Why investigate?

In Israel, a sitting president cannot be tried for a criminal offense, and a special three-quarters Knesset majority is required to impeach him. But it is relatively easy to open an investigation against a president. Dana Blander of the Israel Democracy Institute says, "To this day, the legislature has not interpreted a criminal investigation against the president as a blow to his immunity." Sheetrit believes, however, "If they were to uphold the spirit of the law here, ostensibly, it would not be necessary to open an investigation against Katsav, because if he cannot be tried, what is the point of investigating? There is some doubt regarding the legality of this matter."

However, Sheetrit agrees that Katsav himself opened the door to an investigation when he approached the attorney general with complaints of attempted blackmail. A precedent was established in 2000 when President Ezer Weizman was investigated on suspicion of accepting funds from millionaire Edmund Serousi. Weizman acknowledged at the time: "I accept the decision to open an investigation. I will be investigated like any other citizen, because no man is above the law."

Contrary to the queen, Britain's prime minister does not have immunity from investigation. Indeed, the British police has been conducting a very comprehensive investigation into suspicions that Tony Blair recommended awarding titles of nobility in return for huge, unreported contributions to the Labour Party.

The American constitution is very unclear on the president's immunity. The constitution calls for impeachment for treason, bribery, and serious crimes and offenses, which is open to interpretation. In 1982, the U.S. Supreme Court ruled in the case of Nixon vs. Fitzgerald that the president has immunity from civil suits over his actions as president.

But when Paula Jones sued Bill Clinton for sexual harassment, this ruling was not relevant because it related to acts that preceded his term as president. Nevertheless, there is no decisive precedent regarding whether a sitting American president may be tried for a criminal offense, or whether he must first be removed from office.

In Italy, as in Israel, the prime minister can continue serving while a criminal trial against him is underway. And indeed, former prime minister Silvio Berlusconi's long tenure was accompanied by corruption trials. He was found guilty of accepting bribes four times and was sentenced to a considerable number of years in jail. But all of the punishments were cancelled on appeals or due to statutes of limitations. Even if the punishments had not been cancelled, it is doubtful he would have sat in jail because of his parliamentary immunity.

In 2003, Berlusconi passed a law granting himself and another four senior government officials immunity from prosecution during their terms in office. The constitutional court of Italy disqualified the law. But that does not mean Berlusconi did not benefit. In the meantime, his trial on charges of giving a half-million dollar bribe to a judge in 1991 was delayed, and when it was renewed, Berlusconi was acquitted because of the statute of limitations.

No immunity for King David"The immunity delivered so generously in our country is very foreign to the spirit of Hebrew law," writes Israel prize laureate Prof. Nahum Rakover in his book "The Rule of Law in Israel." Rabbi Yehudah Zoldan, of the Jerusalem College of Technology?s Lev Institute, says, "In general, immunity is foreign to halakha. Everyone is equal. There is no situation in which a president should not be investigated or a suit should not be filed."Halakha sources ostensibly stipulate the exact opposite: ?The king may neither judge nor be judged," reads tractate Sanhedrin 2:1. However, commentators including Rashi and Maimonides explain that the Sanhedrin granted immunity to the kings of the Hasmonean dynasty out of fear.

"They were afraid to deal with them," says Zoldan, "and afraid that if the people saw the king flouting the Sanhedrin?s laws, the people would also flout them."The kings of the House of David, however, did not enjoy immunity. If the leader sinned, halakha would not bar him from being tried, says Rabbi Zoldan. However, he feels that the halakha does provide a framework for setting up a forum of neutral public figures and jurists to investigate whether justification exists to indict public figures.

Can't live with himThe problem with the presidency is that although the last two terms have been tough, we couldn?t do without it. The president does not make many decisions that require judgment, and ostensibly all he does is symbolize and represent, i.e., serve as the head of state. But somebody has to receive credentials, swear in judges, grant pardons and sit in the dignitaries? box at final cup matches.There have been calls to eliminate the presidency here. But Reuven Hazan, a doctor of political science at the Hebrew University, says the best argument against this is that no other country has done so. If Israel were to disband the presidency, it would once again be reinventing the wheel − as in the direct elections method.Western countries have three models for a representative head of state:

b The presidential regime, where the head of the executive branch is the head of state. The United States and many Eastern European countries use this model.b The parliamentary regime, where the head of state has little authority. He or she may be a president, king, queen or any other figure. In Europe, 11 countries are headed by a member of a royal dynasty.b The British Commonwealth model, as practiced in Australia and New Zealand. In these countries, the head of state is the Queen of England, who is represented by a governor general. It is fairly common for countries to have foreign heads of state: In the principality of Andorra, for example, two co-princes share the role. One is the bishop of Seu d?Urgell and the other is the president of France, Jacques Chirac. Greenland?s head of state is the queen of Denmark.

Approximately half of European regimes are presidential, and the rest are parliamentary democracies. All the latter have a representative head of state. In Israel, the president has much less authority than in some other parliamentary democracies. But Israel Democracy Institute chairman Prof. Arik Carmon feels that the Israeli president?s power lies in his lack of authority. This is what enables him to rise above the many disputes and divisions in Israel. ?It?s much more than a symbol,? he says. Carmon opposes eliminating the post. ?The president is of the utmost importance, but the right person must be found for the role.? ?