As Israel's new justice minister, Daniel Friedmann, takes office, we are hearing a great deal of talk about the "rule of law," but few people truly understand its full, complex meaning. This term has two definitions - one formal and the other intrinsic. In addition, it has another, uniquely Israeli meaning.
"Rule of law" in the formal sense means simply that the existing law should be implemented without discrimination and without analysis of its content. The intrinsic sense, on the other hand, is value-based in that "rule of law" relates to an existing law per se, analyzing it to see if it is in harmony with the worldviews of modern liberalism, if it is egalitarian, certainly not retroactive.
If the intent of the law is not delineated, it runs counter to the rule of law. This is most especially true in regard to criminal law. The rule of law demands that an offense be clearly defined so everyone will know what behavior is against the law.
Totalitarian regimes are typified by a general basket of offenses that make it possible to bring charges against anyone. Israel's criminal code generally defines offenses well, although there are exceptions. One of them is the offense of "fraud and breach of trust," according to which "a public employee must not commit... an act of breach of trust that harms the public."
This offense, intended to protect the integrity and honesty of public officials, has been the target of considerable criticism from judges and scholars because of its indefinite nature. In its current formulation it runs fundamentally counter to the rule of law. Justice Mishael Cheshin said that despite its importance, "its boundaries are completely unclear."
Harsh criticism has also been voiced by other legal scholars, although the Supreme Court has made some effort to limit its application. This matter is particularly topical now due to the wave of suspicions against public officials on account of various acts of corruption.
So what do we do? After all, now more than ever we need clear definitions of improper behavior that is less than bribery on the part of public officials.
ETHICAL OFFENSES can be defined and dealt with using effective disciplinary justice introduced for them - just as the new justice minister suggested last week; or the offenses embodied in "breach of trust" can be specifically defined, such as by the provision of benefits to associates or the making of improper political appointments.
But the state prosecutor did not take this path. Instead, the office broadened the use of this basket offense. Accordingly, the prosecution has ordered criminal investigations into all Israel's prime ministers in the past 20 years, some because of "breach of trust." And the police made sure that each investigation received wide local and international coverage - all without charges ultimately being served against anyone.
This process reached its height with the investigation of former prime minister Binyamin Netanyahu in what became known as the Amedi Affair. In that case, a furniture mover sent a bill to the government for moving the Netanyahu family's furniture. The government did not see fit to pay this bill in full, especially in view of the fact that it was inflated in the extreme. This civil case ended two weeks ago in court in a compromise, with Netanyahu paying part of the bill and the Treasury paying the rest.
But what did this have to do with a criminal investigation? The prosecution ordered the investigation, and Netanyahu and his wife were interrogated for hours on end - with each session lasting seven to eight hours! In the end the prosecution recommended indicting Netanyahu for an offense that was a figment of its creative imagination.
The attorney-general, Elyakim Rubinstein, quite rightly rejected the prosecution's recommendation. In the meanwhile, however, the news that a former prime minister of Israel was being investigated for fraud made its way around the whole world.
This Israeli "rule of law" has brought the situation to the realm of the absurd. It has given the investigation of public officials a bad name. But when a truly serious case came up, the Greek Island affair, for example, Attorney-General Menachem Mazuz closed the case for reasons that many people found unconvincing.
THE TIME has come to do away with the "all to the guillotine" approach and replace it with a comprehensive reform: an amendment of the "breach of trust" law to adapt it to the principles of the rule of law, so that a criminal investigation may be launched only when a real crime is involved, and an indictment served only when there is a reasonable expectation of a conviction.
That would be the real rule of law, rather than the mockery that the prosecution, with the help of the police, has instituted. That would be the real war on corruption.
Let us hope that the new justice minister, Prof. Daniel Friedmann, an upright and honorable man who can be completely trusted with the rule of law and public integrity, will, together with Attorney-General Mazuz, do what it takes to set the rule of law back on track and end the current approach, which makes a mockery of the law.
The writer, a former justice minister, is president of the Interdisciplinary Center Herzliya.
Join Jerusalem Post Premium Plus now for just $5 and upgrade your experience with an ads-free website and exclusive content. Click here>>