Netanyahu Corruption Case And The Dilemma Of ‘Plea Bargain’ System Of Criminal Law

Irina Baranova

‘The New York Times’ (January 16) has reported that the lawyers of Benjamin Netanyahu, former prime minister of Israel, are “in negotiations with state prosecutors to reach a plea bargain in his long-running corruption case”. The case first came into the limelight in 2016 through a police inquiry that alleges that the former Israeli Prime Minister had misused his office for getting positive media coverage from the owners of two media companies in exchange for certain executive favours to these media Moghuls. He is being tried for ‘bribery, fraud and breach of trust charges.” As per the Israeli legal system, Mr Netanyahu could face imprisonment of several years in case of conviction. He has pleaded not guilty in the trial. ‘NYT’ further reports, “The proposed bargain includes Mr Netanyahu’s admitting to some of the charges, all of which he still formally denies in court, in exchange for the prosecution’s downgrading the seriousness of one charge, dropping another entirely and allowing Mr Netanyahu to avoid serving a jail sentence by instead performing community service…” A deadlock has been created between Mr Netanyahu and the State prosecutor, as the former is interested in getting the charge of ‘moral turpitude’ against him, reports the newspaper.

The concept of ‘plea bargaining’ covers the circumstances in which defendants are induced to plead guilty in the knowledge that they will receive a more lenient sentence by doing so, and would be processed impartially. In the present case, Netanyahu, who can be termed as a chronic offender, will be likely to receive less punishment. It can also be seen that those who opt for going into trial receive harsh penalties and sentences when comparable offences are considered. The nature of criminal law is penal and aims to punish the offenders who are liable for or has committed any action against society at large. In the words of Blackstone, crime can be defined as “any act that has been committed or has been omitted in the violation of any public law.” Crime is committed to opposing the principles of public policy and so it endangers the society at large. If the matters are pleaded for a bargain in the offences that can question the dignity of society at large, it will create chaos. The offence of Netanyahu is against the people of the society and can lead to the rise of undemocratic principles. If the punishment of Netanyahu is reduced, it may result in lawlessness among the people. 

The view against plea bargain is that the suppressed and weaker class is less likely to receive a reduced charge as compared with the dominant and powerful sections of the society. Due to its impact, a difference is created in society that leads to the marginalisation of the dispossessed class. If Netanyahu is provided with the process of a plea bargain, the procedure of penalisation in criminal law will weaken and this will trigger a spike in the crime rate. Punishments deter, prevent and disable the offender from committing any crime and reform the person who is liable for the crime. Legislations must be based on the principles of liberty, equality and justice and should not favour a class of society.  The concept of natural justice is based on the Latin phrase ‘Jus Naturale,’ which gives rise to the theory of ‘rule of law.’ As per Cornell Law School, it is a philosophical system of legal and moral principles that are purported to be based on human nature and moralistic ideas of right and wrong rather than on legislation, judicial action, or statutes. Natural justice must be free from prejudices and all the concerned parties to a particular case must be provided with a fair opportunity. And as far as the idea of the rule of law is concerned, there is no individual who can be considered above the law. In human society, every person is subject to the law of the land. A person holding a high rank or position cannot be left from the due process of law. Judiciary must be free from socio, economic and political biases and keep personal favours away. Netanyahu, a former PM, must also be governed by the due process of law. His political, economic and social position should not be used to govern the criminal justice system.

Laws are made to govern society in a rational manner, which is exclusive of personal prejudices. If the justice system favours a class of society, it may lead to the rise of power-centric authoritarian rule.

In India, too, the concept of a plea bargain, which was introduced by the Criminal Law (Amendment) Act, 2005, for tackling the huge pendency of cases, is also debatable.  It is mentioned in Chapter XXIA of the Criminal Procedure Code under Section 265 A to 265L. Despite the warnings issued by various High Courts in cases such as State of Uttar Pradesh v. Chandrika (1999), Madanlal Ram Chandra Daga etc. v. the State of Maharashtra, (1968) and Murlidhar Meghraj Loya v. State of Maharashtra, (1976), the Indian Parliament had introduced the double-edged plea bargain system in order to tackle the long pendency of cases. Though the Parliament had excluded certain offences that ‘affect the socio-economic condition of the country,’ which are committed against the women and the children below the age of fourteen years, the Netanyahu case shows that the practice of plea bargain should be continued with extreme legal caution. If that is not the case, evidence-based dispassionate objectivity of criminal law would crumble and the influential guilty persons would go scot-free. The voiceless masses would have no option but to rue in pain due to the non-availability of resources for a plea bargain. It is a system favouring the rich, the haves and the dominant sections of the society, who can mould law according to their whims, as is being done by Netanyahu in Israel.

(Bhavya Agarwal is a penultimate year student of B.A. LL.B. (FYIC) Programme at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan)

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