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Analysis: Could France's 'constitutional anomaly' soon be transposed to Israel?

Israeli Prime Minister Benjamin Netanyahu speaks during a ceremony marking 50 years since Israel captured the West Bank and other territories in the 1967 Mideast war, in Gush Etzion settlement in the West Bank, Wednesday, Sept. 27, 2017.
AP Photo/Tsafrir Abayov
As Netanyahu embroiled in multiple scandals, the 'French bill' could echo failed initiative of Berlusconi

The Israeli Knesset's winter session got off to a dramatic start this week with the presentation of a controversial bill supported by Israeli Prime Minister Benyamin Netanyahu's partisans within the coalition that would shield a sitting prime minister from police probes.

The text, dubbed the "French law", is aimed at granting the sitting head of government "immunity" from certain police investigations, similar to the one applicable to the French President during his mandate according to articles 67 and 68 of France's Constitution.

Likud lawmaker Dudu Amsalem, who drafted the bill, promised he proposed the legislation "without prior talks with the Prime Minister" who is currently named as a suspect in a slew of corruption investigations.

The bill was blasted by the opposition and some members of ruling coalition government have also refused to support it, including Finance Minister Moshe Kahlon (of the center-right Kulanu party) who indicated he would allow party members to vote on the legislation as their conscious dictates. The decision drew the wrath of Coalition whip David Bitan, powerful Netanyahu ally.

Other key officials have come out against the bill, including State Prosecutor Shai Nitzan and Attorney General Avichai Mandelblit who earlier this week called the proposition "absurd".

“There is a determined opinion that due to the ‘honor’ of kings and other leaders, we should not investigate suspicions against them so that public trust in them is not damaged, which is a total nonsense,” State Prosecutor Shai Nitzan stated.

The controversial bill is planned to be applicable only to the next elected prime minister, which has led several observers to conjecture that Netanyahu could call for early elections in order to get re-elected and avoid a hypothetical indictment in the ongoing cases against him.

AP Photo/Ronen Zvulun, Pool

Still, the attempt to draw inspiration from "French immunity" at a time when people demand more transparency, yearn for more justice, and protest against the immunity of men of power, suggests that the bill has virtually no chance of being approved. However, since the project is on the agenda it is worth looking into the French experience.

In France, the measure was subjected to several debates amongst jurists. Some of them even considered this political and criminal irresponsibility of State Head as the legacy of an anachronist monarchic tradition.

"King can't go wrong in anything," a common saying from French Ancien Régime, originated this historical irresponsibility that was first motivated by the king's sacredness and then, and later by the "protection of the institution."

France's Constitution from 1958 stipulated that "the President is responsible for the accomplished acts while carrying out his duties only in the case of high treason" but a special jurisdiction was also established: only the High Court of Justice can judge him. So there is not only political irresponsibility, there is also special justice.

The 2008 French Constitutional revision by President Nicolas Sarkozy excludes reference to any presidential "responsibility" and defines the outlines of a "destitution" procedure in case of any breach of his duties which is obviously incompatible with governing. A rather vague wording very similar to high treason.


The Revision also specified that "the President is not required to testify and is not subjected to any criminal or civil proceedings, nor to any preferring of charges or investigatory measures." A clarification of presidential criminal immunity was ratified by a judgement from the Appellate Court in 2011, reading: "Directly elected by the people to ensure the regular operation of public authorities and State continuity, the President of the French Republic can't be tried out as supervised witness, cannot summon nor be sued".

Thus, criminal proceedings against President as a citizen for actions prior to his functions and duties as head of state are adjourned during his mandate.

And so was the case for President Jacques Chirac in the height of a fake jobs affair at the Paris town hall which took place before his mandate. Nicolas Sarkozy was the second former President under 5the Republic to be sued for several legal cases.

Basically, if history granted irresponsibility of the sitting head of state in France, transposing it in another democratic state where the exception regime is not established seems to be delicate at the moment and could easily be perceived as a step back in democracy.

Besides, as Israeli Prime Minister Benjamin Netanyahu is suspected in several investigations, the timing for the presentation of this bill contributes to fueling mistrust toward him and may echo the failed initiative of the head of Italy's government, Silvio Berlusconi, who in 2003 attempted to establish a similar law granting immunity to the five highest-ranking government officials during their mandate, all who were subject to investigations of numerous scandals at the time.

Eventually, the law was judged unconstitutional by Italy's High Court.


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