Constitutional Plastering

Just as sea squills signal the coming of autumn, the promises to legislate the "indictment law," which would prevent a person under indictment from serving as prime minister, signal that elections are approaching. Since the decision to file an indictment against Benjamin Netanyahu in 2019, this has been a constant political ritual trapped in a passionate trench war between Netanyahu's supporters and his opponents. The former see it as a plot to oust him, while the latter see it as the only way to escape his grip.

If we peel away this agitated shell, we will discover that beneath it lies a real architectural danger to the stability of our democratic structure. On one hand, the arguments against the law are very heavy. On a democratic level, blocking a candidate is a violent expropriation of the power of choice from the public. Constitutionally, it is a crushing of the presumption of innocence and the imposition of a drastic punishment based on assumptions that have not yet passed through the crucible of the court. Above all, a much more serious structural danger hovers: granting such a powerful wrench to a single official — the Attorney General — allowing him to dismantle governments with a signed stroke of a pen, is disastrous. This is precisely why the absolute majority of Western democracies refuse to introduce such a "Trojan horse" into their legal systems. They sanctify the will of the people and the presumption of innocence, drawing the line only after a final conviction carrying moral turpitude, or leaving the removal to transparent political mechanisms in parliament.

On the other hand, one cannot ignore the heavy price involved in leaving such a legislative vacuum that threatens to crack the foundations of the entire house. Democracy is not just a cold engineering drawing based on counting ballots. It endures thanks to the invisible cement of public trust in the integrity of its institutions. The possibility that a criminal defendant will appoint his judges and control the enforcement systems investigating him creates a built-in, daily conflict of interest that leads to massive corrosion, eroding the belief that the government acts for the public good. Some argue that in most Western countries there is no need for such a law simply because their cultural support walls do not allow a politician accused of crimes not to resign on his own, so as not to drag his country into the abyss. In a reality where these support walls do not exist, there is no choice but to legislate.

To escape this trap, we must stop searching for heavy construction equipment to build an infrastructural solution and instead find that engineering component capable of absorbing shocks and maintaining the structure's stability without granting destructive power to the bureaucracy. For example, in the form of a public council, in whose hands the key to activating the "indictment law" would be entrusted. A council composed, for example, of the President of the State, retired senior jurists, and public figures who enjoy the trust of both the coalition and the opposition. The prosecution would present the evidentiary basis to it in a closed hearing, and only if a majority of the council members are convinced that the foundations of the indictment are solid and that there is no political contamination or ulterior motive — would the law be activated.

The exact model is subject to architectural discussion, but the structural principle is clear: a democracy that wishes to live cannot afford to manage a country from the defendant's bench, but it also cannot allow a bureaucracy that topples governments of its own volition. Such mechanisms are part of the governance architecture in many countries. In the USA, the prosecutor is required to obtain approval from a grand jury, and in sensitive political cases, a special and independent prosecutor is appointed. In France, there is a special instance that combines three Supreme Court judges with 12 members of parliament from the coalition and the opposition. These are just a few examples.

Attempts to legislate the "indictment law" as it is, or alternatively to perpetuate the status quo, are nothing but temporary wall plastering that leaves the engineering failure intact. Only the adoption of a balanced architecture, which will grant the criminal process democratic legitimacy and immunity from claims of persecution, will strengthen the foundations of the regime and build a shock-resistant construction that will not crack in the face of the storms of the hour, and will allow the squills of the next elections to bloom safely in their time.