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Right of silence

The truly innocent should have no fear to talk unreservedly

January 17, 2015 22:20
3 minute read.
Faina Kirschenbaum

Faina Kirschenbaum . (photo credit: KNESSET)

The refusal to answer questions during police interrogations to avoid self-incrimination is a recognized right in most Western democracies – even if nuances of interpretation and application vary among different legal systems.

Israel is no exception. The right to keep mum – broadly equivalent the Fifth Amendment of the US Constitution – most often makes headlines here when public figures invoke it.

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Most recently this occurred in the case of Yisrael Beytenu MK Faina Kirschenbaum. She announced she is quitting public life in the wake of a corruption scandal in which she is the chief suspect. Kirschenbaum, who had served as deputy interior minister, refuses on order of her attorneys to respond to police interrogators. This resulted in scathing criticism from the media and rival politicians.

The argument put forth by her critics was primarily that while the law unambiguously guarantee the right to remain silent in police and prosecutorial interrogations, staying silent implies guilt. This unfortunately is a perception prevalent not only in our public discourse and in the press but also from the police, prosecution and often judges.

Their rationale is that because this protection of the law is aimed at preventing coercive self-incrimination, anyone who makes use of this protection in effect admits that he/she is guilty and has something to hide. According to this logic, only the culpable fear self-incrimination.

The truly innocent should have no fear to talk unreservedly.

Nevertheless, anyone familiar with legal convolutions knows that nothing is necessarily so black or white. This is all the more true given the alacrity of our police and prosecution to leak like sieves – and very tendentiously so.

The inclination, consequently, to regard the local counterpart of “taking the Fifth” as an admission of guilt is unwarranted and disproportionate, to say the least.

That said, while public officials do have the same rights as any citizen, there is something unpalatable when they exercise their right to silence in cases involving their office or the funds over which they had control. There is merit to arguing that avoidance of self-incrimination in these circumstances ought to constitute a distinct category and that in that context silence might call into question the innocence of the accused.

To erase any doubt, the Knesset would do well to legislate special rules for holders of public office.

Meanwhile, in the absence of clear legal guidelines, it must be said in Kirschenbaum’s favor that she understood the particular problematics of her position and quickly withdrew from politics. In a sense, by quitting public life, she had put herself in the same category as any ordinary member of the public.

She did what some of our politicians – among them very prominent ones such as prime-ministerial aspirant Isaac Herzog of Labor – had failed to do. Herzog famously kept conspicuously silent in a case incomparably weightier than the one now facing Kirschenbaum.

Dubbed by then-state comptroller Eliezer Goldberg the “greatest election scam ever,” it was spawned by the comptroller’s 2000 report that revealed a shocking, unprecedented network of nonprofit organizations – some falsely masquerading as charities – deliberately set up to funnel illicit funds into Labor’s 1999 campaign coffers.

Herzog, a higher-up in Ehud Barak’s campaign, stayed as silent as Kirschenbaum now does, but he got away with it. For one thing, the eagerness evinced by the prosecution in other high-profile probes was notably missing in Labor’s case although all suspects demonstratively refused to cooperate with the investigation.

Herzog wiggled out just barely because funding restrictions applied to parties in Knesset contests. He argued that the prime-ministerial races were exempt. An artificial distinction was thus drawn between the campaign of the party and that of the candidate it fielded – between closely interconnected campaigns.

It is not solely a matter of double standards and possible political bias. The critical danger is that the citizenry will lose faith in the system and assume that the law is not quite as blind as it ought to be. It is such impressions that in the end do most to undermine the rule of law.

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