Israel needs a price tag for judicial system’s belligerence

In the US, the Supreme Court led a constitutional human rights revolution.

By SIMCHA D. ROTHMAN
THE view from the Supreme Court: While the debate over the attorney-general’s role is longstanding, the debate over the comptroller’s role is far more recent (photo credit: Courtesy)
THE view from the Supreme Court: While the debate over the attorney-general’s role is longstanding, the debate over the comptroller’s role is far more recent
(photo credit: Courtesy)
The recent discoveries revolving around the interrogation of Prime Minister Benjamin Netanyahu’s advisers and the conduct toward the state witnesses in his cases by police and prosecution have exposed more than just the alleged flaws in the investigation of Netanyahu’s cases, but also a deep-rooted problem in the Israeli judicial system.
In 1992, two Basic Laws were legislated, Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. This, according to Supreme Court Judges and legal experts, brought Israel into the age of human rights. The Knesset handed the task of protecting human and civil rights over to the judges. If necessary, they must also protect us, citizens of Israel, from the tyranny of the legislature and cabinet members, who will violate our rights if we free them of the restraints of the High Court of Justice and allow them to defy the “friendly advice” of the Chief Legal Advisor.
However, the story about lawyers and judges protecting citizens against their elected officials made us forget a simple truth; the majority of serious human rights’ violations and infractions actually take place in the backyard of these lawyers and judges, in the fields for which they are directly responsible. In fact, the great promise that was the constitutional revolution did not promote human rights in Israel, rather, it strengthened the judicial system at the expense of parliamentary oversight and public inspection.
The chance that a member of Knesset would violate a person’s privacy (which is protected under the Basic Law: Human Dignity and Liberty) is slim to non-existent, but a prosecutor who asks for a warrant to tap or search a phone and the judge who gives him the warrants offhand, ex-parte, sometimes without even reading any of the material or asking questions about it, do this every single day. Prosecutors who ask for extensions of arrests can be responsible for serious and inordinate violations of civil rights as part of their routine job.
In the US, the Supreme Court led a constitutional human rights revolution. However, this was done, first and foremost by oversight and supervision of law enforcement and the court's system. The unequivocal resolution that evidence obtained illegally as a result of civil rights infractions carried out by police or investigators is inadmissible, crushed law enforcement’s motivation to bend the rules. The “fruit of the poisonous tree,” Miranda rights, and a list of regulations that were set throughout the years, really did promote civil rights.
In contrast, in Israel, even if evidence was collected while violating a suspect’s rights, the courts will deem the evidence admissible, at most they will agree to give it less weight in consideration. Even if the illegally gained evidence is not submitted to court, because of the prosecution’s tactical considerations or it is withheld from the defense, it can still be used as intelligence and gathered by the police for future use.
This is how we have a reality in which the police holds the “Yitzhaki Document,” which contains information on cabinet members and Knesset members – past and current. This document is, in fact, a covert threat against any elected official listed in the document, making sure they never aggravate law enforcement or conduct any oversight. This is how we have a reality in which Israeli Police’s most prestigious investigative unit, Lahav 443, along with senior prosecutors, have authorized the most dubious measures in high-profile investigations.
A police force with excessive power and the fear of wiretapping, informants, and cellphone searches do not characterize a democracy that is committed to civil rights. The judiciary has become sacrosanct. No one is allowed to oversee its operation, no one dares to criticize it.
Members of Knesset and cabinet must do something. They must immediately investigate the law enforcement system’s flaws and establish an independent unit that will investigate violations of the rights of suspects and detainees, as well as other legal infractions by law enforcement personnel, and they must introduce legislation that would make evidence obtained illegally inadmissible in court.
Only a “price tag,” which will make breaking the law inefficient for investigators, will reduce the belligerence of the justice system and rehabilitate the public’s faith in it. Only a “price tag” determined by the legislature can protect Israeli citizens from the system that is most susceptible to violating their rights.
The writer founded the Movement for Governability and Democracy, an NGO fighting judicial activism and advocating proper separation of powers in Israel. He is the author of a new book on the overreach of the Israeli judiciary.


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