Legal analysis / Not the first PM to face the fire By Ze'ev Segal (reprinted with the permission of Haaretz Daily Newspaper, Israel's leading daily publication)   The Basic Law on Government attaches special importance to the decision to open a criminal investigation against a prime minister, by stipulating that such a probe can only be launched "with the attorney general's consent." The attorney general does not have to make the decision, but he does have to approve it. Thus State Prosecutor Eran Shendar's decision to investigate Ehud Olmert over the sale of Bank Leumi should, by law, have received Menachem Mazuz's approval. Shendar's decision was based on the existence of an "evidentiary infrastructure" that, to his mind, justified an investigation. This evidence is not yet enough to warrant an indictment, but the decision is nevertheless significant, as it was made following preliminary police inquiries. Olmert is suspected of breach of trust and abusing his position.

The Basic Law does not discuss what happens if a prime minister is under investigation, and formally, such a probe does not affect the premier's standing. Only if he were indicted would he be expected to resign, in line with the High Court of Justice's ruling that any minister indicted on serious charges must resign. That ruling did not relate to the prime minister, but would presumably apply to him as well.

The court has also ruled that under certain extreme circumstances, even the opening of an investigation could require a minister to suspend himself. However, the Israeli "tradition" in the case of prime ministers is that they continue to serve while under investigation. That is what happened during the probes of Ehud Barak, Benjamin Netanyahu and Ariel Sharon - none of which resulted in indictments.

The prime minister is, of course, entitled to leave office of his own accord. According to the Basic Law, he can transfer his responsibilities to another minister for a maximum of 100 days by declaring himself "temporarily" unable to fulfill his duties, and can resume them upon declaring that this "incapacity" has ended.

Helping a friend

The crime of breach of trust, which carries a maximum sentence of three years, includes cases where an office holder helped a friend to obtain unwarranted benefits. Shimon Sheves, a former director general of the Prime Minister's Office, was convicted of breach of trust in 2004 for that reason; in that case, a nine-justice panel of the Supreme Court decided to convict due to the "extremely severe conflict" between the public interest and Sheves's private interests. Former chief justice Aharon Barak wrote in the ruling that "the criminal prohibition against breach of trust is a key tool in society's struggle to maintain the purity of the [public] service and ensure the public's faith in public servants."