The Rule of Law: The Attack on the Principle of “All are Subject to the Law” in Israel

Like all democracies, the principle of the "Rule of Law" exits in Israel. In recent years, there have been quite a few attempts to overcome this tenant, potentially causing long-lasting damage to public confidence in the justice system. Dr. Fuchs explains.

Flash 90

“The rule of law” is an elusive concept which can be interpreted in several ways. Nevertheless, there is consensus on several criteria that must be met for the “rule of law” in a state which is not totalitarian or based on some other form of dictatorship. A democratic state is by definition one which operates by the “rule of law”, despite the fact that the concept was created prior to the rise of modern liberal democracies.

The rule of law has many implications, among them—the state’s obligation to act only on the basis of its authority grounded in legislation; the need to maintain the independence of the judiciary and on the right of individuals to turn to the courts, along with specific contents of the law (for example—generality, prospectivity , clarity, etc.).

But most importantly, the rule of law means that all individuals, including the rulers and the government are subject to the law. In this sense, the rule of law is defined by the antithetical principle which it is meant to oppose: a situation in which an individual or individuals are above the law. The rule of law is based on a system of government, which is subject to rules, rather than on a system which is arbitrary or tyrannical. It is based on limited power rather than on absolute power. In other words, the rule of law relates to the principle –“the state’s government is loyal to the law rather than to an individual, including the individual at the helm of the stateYitzhak Zamir, “Administrative Law” 84. The derivative of this principle is that all are subject to the law—each and every citizen, and the governmentShem, page 61. 

This principle was articulated very clearly even before the establishment of the state, in Thomas Payne’s “Common Sense “manifesto in 1776, calling for the liberation of the British colonies, which was widely disseminated in the context of the American Revolution. Paine called for the establishment of an independent state based on the rule of law:

“In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king, and there ought to be no other”. 

How is this principle expressed in Israel? 

In Israel, law enforcement authorities—the police, the State Attorney’s Office (headed by directed by the Attorney General in his capacity as State Prosecutor) and the courts are professional entities which enjoy independence and significant authority. Even without trying to assess the efficiency of Israel’s criminal system, we can say with confidence that Israel has a system with considerable authority which enforces the law, subject to the prosecution’s discretion and the limitations of the system’s resources.

It should be noted that in recent years, many public officials have been under investigation, and some have been prosecuted and even convicted and have served prison terms. Most prominent among them are Prime Minister Ehud Olmert and President Moshe Katzav, along with a large number of ministers. This situation can be viewed as an indication of the acceptance of the principle of the rule of law in Israel, and especially of the understanding that no one is “above the law.”

Immunity of Members of Knesset and Ministers

The immunity of members of Knesset constitutes a deviation from the “rule of law” principle. In Israel, members of Knesset enjoy both – functional and procedural immunity. The former, which relates to acts performed by the MK in the context of his or her role as a member of Knesset (“in the context of a vote, or expression of an opinion verbally or in writing, or an act performed by the MK—whether in the Knesset or otherwise, if they participated in the vote, expressing the opinion or act in the performance of his or her duties as a Member of the Knesset”). Functional immunity cannot be revoked but according to the law and to a court ruling, it is relevant only to the “area of natural dangers” and enables MKs to fulfill their jobs without fear of violation of the law or of lawsuits. “It is not intended to allow the MK to engage in criminal action. The Knesset also chose to clarify that there are acts and spoken expressions will never be sanctioned with substantive immunity, including for example: to negate the existence of the State as the state of the Jewish people or as a democracy; incitement to racism; support for an armed struggle and for terror (5)”. 

Procedural immunity refers to immunity from being put on trial, and is applicable only during an MK’s term of service. According to the law which was in place till 2005, the Knesset was required to waive immunity in response to a request from the Attorney general, so that an MK could stand trial. In most cases in which it was necessary to prosecute an MK, immunity was revoked. In a minority of cases---especially conspicuous among them, the case of MKs Hazan and Gorolevsky—with regard to “double voting” in 2003---the Knesset refused to revoke the immunity and the High Court of Justice had to intervene. According to the court ruling on the old version of the law, the only cases in which in which the Knesset is permitted to revoke immunity –are cases of political “persecution” of the MK by the prosecution –in which it is justified to deviate from the principle of the rule of law. 

In the wake of serious public criticism and in the course of partial implementation of the conclusions of the public committee headed by Moshe Nissim (1997), the law was amended in 2005 to the existing law, according to which an MK does not have automatic immunity, but can request such immunity from the Knesset Committee, subsequently to which, a decision is made in the Knesset plenary. 

The new law changed something else as well, by defining the grounds for the Knesset’s grant of immunity. These are broader than those recognized by the High Court rulings about revoking immunity under the old law. The new grounds are: establishing that the situation is one in which the MK’s substantive immunity applies; the indictment was filed in bad faith or discriminatorily (similar to the High Court’s ruling about good faith); the immunity relates to an incident that occurred within the Knesset and for which that body already took disciplinary action against the MK; that revoking immunity might seriously impair the functioning of the Knesset or the representation of the electorate; and that-- in light of the severity and circumstances of the offense, failure to prosecute the case will not have a serious impact on the public interest.

It follows that the new model of legal immunity somewhat cut back on this exception to the rule of law by making immunity the exception rather than the default. However, the scope of these grounds for immunity must still be clarified by the court (because the Knesset has never granted immunity under the new law).

Recent Threats in Israel to the Principle that “All are Subject to Law 

The “French Law”

The most blatant example of an attempt to undermine the rule of law with regard to its most fundamental principle —that is, that the law applies universally and equally to all—is the attempt during the 20th Knesset to enact the “French Law.” 

According to this bill, “the Attorney General will not approve questioning under caution of an incumbent Prime Minister except in cases of sexual, violent, security-related, or drug offenses, or if deferral of the investigation is liable to cause substantial harm to national security or to the economy.” In order to avoid the suspicion that this legislation was crafted to benefit an individual and to protect the Prime Minister currently in office against investigations that were already in progress, the text specified that the law would not apply “to an investigation that had begun before it went into effect.” It is clear, then, that despite the fact that this isn’t stated explicitly in the bill, at least with regard to future investigations, it would be extremely difficult to indict and try an incumbent Prime Minister suspected of a crime, not only due to the practical challenge of winnowing through all the information required to arrive at such a decision, but also because of the desire to keep criminal proceedings fair, given that the passage of time would make it more difficult to investigate the suspicions properly. 

The bill, which would replicate in Israel the exceptional situation that exists in France and in a few other presidential systems, undermines the most fundamental principle that every individual is subject to the law, in that it sets the head of the executive branch above the law. The argument that the investigation is merely postponed until after the person leaves office is a red herring. First of all, in Israel the prime minister is not subject to term limits (as should be the case in a parliamentary regime), unlike the situation of the President of France. What is more, it is clear that postponing the investigation for many years strikes a serious blow to the ability to investigate the case, and in many cases would make the law ineffective, because as the years pass --evidence is contaminated, vanishes, or loses its force. The fact that the statute of limitations is suspended has no effect, because old evidence is more difficult to reconstruct; and testimony and evidence not collected in real time are not likely to be gathered years later—whether because evidence disappears or is destroyed or because witnesses’ memories fade. In addition, the exception for sexual, violent, security-related, or drug offenses brings the true intention of the proposal into sharp focus: protecting the Prime Minister against charges of corruption—bribery and breach of trust. In this way the Knesset would send the public a very harsh message, one that makes light of corruption and mocks the law, its enforcement, and the principle that all are equal before the law. Before the elections for the 21st Knesset, a proposal for a different version of the “French law” was put forward, which would bar criminal proceedings against a Prime Minister with regard to existing investigations as well—and this was clearly meant to protect the current Prime Minister against indictment. The idea ran into fierce public criticism and made no headway in the 20th Knesset.

Proposed Amendments to the Immunity Law

In the 20th Knesset, and even more keenly after the elections for the 21st Knesset, proposals were floated to amend the MK Immunity Law, to require the Attorney General to submit a request to the Knesset to lift an MK’s immunity before an indictment could be filed. This would restore the situation to that which existed before 2005.

As already stated, in and of itself – immunity is an exception to the rule of law, one that can be justified only in very specific and clearly defined cases that involve persecution or the abuse of criminal proceedings against politicians by the legal authorities. It follows that the idea of restoring the former situation is also an assault on the rule of law and an attempt to make it more difficult for law enforcement officials to deal with Knesset members. What is more, it contradicts the principle that bars personal legislation, which is a substantive element of the rule of law, in that it is a transparent attempt to defend the Prime Minister against indictment and trial. 

Proposed Basic Law: The Judiciary (Amendment: Separation of Branches) 

Another idea that infringes on the rule of law in several ways, and in the present context—on, the possibility of enforcing the law against elected officials-- would strip the High Court of the power of administrative review of Knesset decisions to grant immunity (or to remove it, according to the proposed amendment of the Immunity Law). Under its provisions, the High Court would not be empowered to issue orders against the Government, the Prime Minister, ministers, the Knesset and its committees, or the President of the State, unless they had acted “ in violation of the law” or had made their decision for improper motives. 

In other words, this would effectively eliminate all the grounds for intervention under the heading of administrative law, including the ground of reasonability, but also on other related grounds , for example, to the principle of natural justice, such as the rule that individuals may not be harmed with being allowed to state their case (the right to a hearing), the ban on conflicts of interest, and the obligation to weigh all relevant considerations and to exclude extraneous considerations (which are not necessarily “improper”). This would blot out years of precedents of judicial review of the actions of the executive branch: the very heart of the rule of law—the duty of the executive to act in accordance with the law, within the limits of the powers granted it, and pursuant to the goal and spirit of the law. However, in our case, at the core of the political interest in advancing such a bill at the present time is the desire to prevent the High Court from reviewing Knesset decisions related to immunity, and thus in effect, to make it impossible to conduct criminal proceedings against elected officials and to place them above the law.

The “Recommendations Law” 

This law aims at barring the police from submitting a recommendation to the State Prosecutor summarizing the evidentiary basis collected in the course of an investigation. From the outset, the law was presented as intended to defend the principle of innocence, given that many individuals have had their reputations tainted by such police recommendations when, as often happens, at the end of the day – the prosecutor decided not to file an indictment. However, in the wake of repeated statements by investigative bodies, the police, and the State Prosecutor’s office that such a law would sabotage their work, its provisions were trimmed back in a way that exposes the true intent behind them, namely, that they apply only to cases where the investigation is already being overseen by the State Prosecutor’s office: that is, complex cases with a high public profile—including corrupt conduct by elected officials. The law is meant to apply, personally and retroactively, to the investigations of the Prime Minister.

The damage created by such a law extends beyond the fact that it is constitutes personal legislation with regard to the Prime Minister and elected officials. It also explicitly intended to strike a grievous blow to the effectiveness of the interface between the police and the prosecution, an assault on the principle that the law must be applied to all individuals—including those who are not elected officials. This is because if the police are not allowed to summarize the case file, there may be uncertainty as to whether the investigation has truly been concluded. The lack of a summary would lead to confusion and a lack of clarity. Second, a summary of the file can provide the prosecutor’s office with a road map for understanding the material; without it, it may find it more difficult to convert the findings of the police investigation into a valuable resource. There is no substitute for a summary drawn up by those who have the most intimate and fundamental knowledge of the course of the investigation and its findings. Not allowing the police to produce a summary is quite simply—a sabotage of the law-enforcement system. It is meant to deprive the prosecutors of a useful resource and will inevitably drag out their weighing of the evidence. There is absolutely no justification for such a delay, and its sole intention is to disrupt the rule of law.

In fact, the version that was ultimately enacted makes it plain that the legislators were not motivated by concern for the average citizen, but were showing special preference for public figures, thus undermining the principle of equality before the law. At the end of the legislative process, in response to public criticism and political resistance by coalition members, it was decided to pare back the law so that it would not apply retroactively to investigations launched before its passage. In addition, the Attorney General was given the authority to request a summary of an investigation, should he deem it warranted in a specific case.

The law infringes on the public’s right to know and to express its criticism of the investigative agencies—for example, the right to criticize the prosecution’s judgment, based on a comparison of its position with that of the police. Such criticism is important for oversight of law-enforcement organizations and their efficient operation, as well as for the rule of law, especially when it is applied to high-ranking officials in the political or financial system.

Conclusion 

An important aspect of the principle of the rule of law is that “all are subject to the law,” and that no citizen is above the law. In Israel, this principle finds expression in the fact that no one is exempt from judicial proceedings leaving aside limited and specific exceptions, such as the MK Immunity Law.

This principle has been under attack in recent years, and targeted by a number of legislative proposals: those that would bar investigations of the Prime Minister (the “French law”), amendments to the Immunity Law that would make it easier to grant immunity to elected officials, and the attempt to prevent judicial review of the granting of immunity. But all these bills failed to pass. The one bill that was enacted into law, the “Recommendations Law,” could severely impair the police and prosecution’s efficient operation; it too was intended to provide elected officials with maximum protection against indictment and trial for corrupt actions. 

All these proposals are a dagger in the heart of the rule of law and its core principle that no one stands about the law. We will pay a heavy price for the erosion of this principle, and especially the green light it offers for institutionalized corruption. Beyond that, they are liable to strike a lethal blow to public trust in the law and the entire system of criminal law, as well as to citizens’ compliance with and respect for the law.