Analysis: Indictment of Benjamin Netanyahu

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On 21st November, Israel’s Prime Minister Benjamin Netanyahu was indicted on charges of bribery, fraud and breach of trust; making history for being the first Israeli Prime Minister to have been indicted while in office.

The charges pressed are the culmination of a long series of corruption cases, which might prove the end of Netanyahu’s political career and the beginning of a restless struggle for a new leader. The charges against Netanyahu include allegations of offering favors to media houses in exchange for favorable news coverage, and ill-intentioned gifts worth thousands of dollars.

The allegations in this historical prosecution were laid down by Israel’s Attorney General Avichai Mandelbit. In the interest of public justice, he said that the conviction and rigorous prosecution of the Prime Minister is essential. To quote him;

“The public interest requires that we live in a country where no one is above the law.”

Netanyahu responded instantly, fiercely alleging that the charges against him were based on lies and political prejudice. He angrily accused the prosecutors of staging “an attempted coup”. He also blamed the police and the investigating authorities, ordering the public to “investigate the investigators.” Thus ensued a bloody war of political animosity, the country split in its support or condemnation of their national leader.

Significance of the indictment for Israel:

Apart from the fact that Netanyahu was the first premier to be charged against while in office, the indictment is especially significant in the context of Israel’s present political scenario.

Legally speaking, charges of bribery, breach of trust and fraud do not by itself disqualify the premier from continuing in office. Hence, he will not be required to step down, even if the case were to be tried. However, Israel’s political situation is already on thin ice. This would make it very difficult for Netanyahu to retain power if the case against him were to proceed.

Israel’s democracy has failed to elect a new Prime Minister in spite of two elections for the same. Netanyahu’s right-wing government Likud was unable to assemble a government that would satisfy the majority number of 61 seats. The rival government, the Centrist Blue and White Party, also failed to form a coalition that would reach this magic number. This deadlock between the two parties has been continuing for a year, with no chance of resolution.

The challenge is now faced by the Parliament, to conduct a third election in hopes that a coalition might take form. With the charges against the Prime Minister and the public unrest that follows, the Parliament may have to conduct the third election sooner than planned, to avoid political upheaval in the country.

The Pawars and the 2019 scams: India’s very own Netanyahu:

Criminal charges pressed against political leaders are becoming less uncommon by the day. Political leaders are but human, and slight errors are accepted and forgiven. However, the increasing number of political frauds, scams, and corruption is alarming. This is not only in the country of Israel; India has its fair share of corrupt politicians.

After many failed attempts and a period of political vacuum, the state of Maharashtra finally has a government in place, i.e. the Shiv Sena – NCP coalition. The post of Chief Minister would be held by Shiv Sena’s Uddhav Thackeray, while NCP’s Ajit Pawar would be appointed as the Deputy Chief Minister. Mr. Ajit Pawar and his uncle Sharad Pawar were involved in the infamous irrigation scam of 2019, making them akin to Israel’s Netanyahu.

The recent case against Sharad Pawar was registered by the Economic Offence Wing against him and the top functionaries of the Maharashtra State Co-op Bank (MSCB), alleging his commission of money laundering and scamming Rs. 25,000 Crore. In brief, the police report charged him of conspiring with the top functionaries of MSCB to provide him with loans in a fraudulent manner.

Prior to this, Pawar and his nephew, Ajit Pawar, faced charges of corruption from the Anti-Corruption Bureau (ACB). The ACB had alleged that the senior government officials were involved with a 70,000 Crore irrigation scam. The scam related to alleged irregularities in approval and execution of various irrigation projects.

The investigation of these cases abruptly came to a close on 26th November, which was unsurprisingly proximate to the date on which Ajit Pawar was sworn into the post of Deputy Chief Minister. Mere days after the NCP came into power, a senior official of the ACB reported that none of the irrigation cases instituted in September were linked to Ajit Pawar. 

The surprising stoppage of criminal proceedings against a person enjoying political power just goes to show how corruption in the political arena changes very little from jurisdiction to jurisdiction. The general approach towards criminal charges against the politically influential is at present fear-induced, and requires change.           

Presumption of innocence in Politics – A death trap?

Public servants enjoy a greater immunity to offenses charged against them, as it is assumed that they, by virtue of gaining the public vote, are more likely to be innocent of committing certain crimes. Section 21(12)(a) of the Indian Penal Code defines the term, as ‘in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the government’.

However, it has been categorically held that ministers are not public servants. In the disproportionate assets case against Tamil Nadu Chief Minister Jayalalithaa in 2016, the Supreme court dealt went into the merits of whether Chief Ministers and other Cabinet Ministers can be categorized as ‘public servants’, along with government functionaries performing public duties.

In the 1979 case of M. Karunanidhi v. Union of India,the apex court held that Chief Ministers very well fall under the definition of public servants. The petition challenged this interpretation followed by the court. It contended that only civil servants, and not politicians, are public servants.

Parliamentary law prescribes that public servants include those who must write a qualifying examination to prove their credentials and suitability for the post. They must be of a set age limit, should be politically neutral, and are governed by the Central State Civil Services Conduct Rules.

On the other hand, cabinet ministers are appointed by the President or the Governor, as the case may be, on the basis of the electoral outcome. They execute the political agenda of their respective parties, and their remuneration is decided by the State Legislature.

The difference between the two boils down to the functions that they execute for the country. While civil servants actually ‘serve’ the public by performing administrative functions; cabinet ministers and politicians do not perform these administrative functions, rather they oversee the entire functioning of the country.

Hence, it cannot be said that politicians fall within the criteria of ‘public servant’ as provided by Section 21(12)(a) of the Indian Penal Code. Therefore, politicians cannot enjoy the protection offered by the section.

The doctrine of presumption of innocence is a legal construct. Article 20(3) of the Indian Constitution provides this right to the people of India, saying that they have a right to remain silent and they are not required to prove their innocence in a court of law.

This right is given to all persons, civilians, servants and politicians alike. However, the doctrine operates to protect the accused from the State’s power to deprive liberty. It was not enacted with the objective of immunizing political leaders from scrutiny.

Nevertheless, it would be unfair to believe allegations against a popularly elected political leader over the trust and confidence he/she has gained over the period of their rule. The presumption of innocence can and should be afforded to politicians, though cautiously, to prevent misuse.

–This article is brought to you in collaboration with Anna Kallivayalil from NLU, Delhi

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