Think About It: Rule of law should apply to everyone
Let us just hope that after the Netanyahu era ends, the rule of law will remain intact and Israel will have a worthy justice minister able to return the confidence in its operation.
By SUSAN HATTIS ROLEFATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state.(photo credit: MARC ISRAEL SELLEM)
In the last week, several acrimonious confrontations have erupted around the concept of the rule of law in Israel.What we mean when we speak of the rule of law is that the state is run on the basis of a system of laws and regulations that are legally enacted or issued by the appropriate authorities, rather than at the discretion of an autocratic leader. Those laws are made known and available to the general public and are applied by means of law enforcement authorities – police, prosecution and courts of law – equally to everyone. No one is above the law.The first confrontation that received the most attention was an unbridled, rather scandalous attack by Justice Minister Amir Ohana last Tuesday on what he alluded to as a group of prosecutors within the State Attorney’s Office. He accused them of engaging in a ruthless persecution of innocent public officials, whose careers they systematically destroy with the support of a cult of fawning reporters.More specifically, Ohana was referring to the prosecutors in Prime Minister Benjamin Netanyahu’s cases, whom he accused of bad faith, and the systematic leaking of information from the prime minister’s investigations. While the court reporters present complaints against the justice system as “attacks on the rule of law,” Ohana is in fact accusing the “prosecution within the prosecution” of being themselves in breach of the rule of law.While the State Attorney’s Office is certainly not above criticism, I feel that what Ohana has done is unforgivable, especially since his accusations are almost completely unsubstantiated, and as he who is responsible for Israel’s legal system at the moment, he ought to be cautious, and avoid leaving a scorched-earth reality behind him.In a few weeks, Attorney-General Avichai Mandelblit will have to decide whether or not to indict Netanyahu, and in all likelihood Netanyahu will be indicted – the $64,000 question being whether bribery will be included in the indictment in Case 4000. Mandelblit knows full well that “there will be nothing because there is nothing” isn’t anything more than the parrot-like utterance of a man, much of whose energies in recent years have been invested in trying to avoid justice while discrediting Israel’s law enforcement system – all sections of which are familiar with what appears in hundreds of thousands of pages of the evidence against him, and who must be finding it increasingly difficult to remain emotionally neutral in face of the slanderous statements emerging from the mouths and keyboards of Netanyahu himself, his son, and his underlings.Let us just hope that after the Netanyahu era ends, the rule of law will remain intact and Israel will have a worthy justice minister able to return the confidence in its operation.But now to the second confrontation around the rule of law. On October 25, a Haaretz headline announced that new pedagogic instructions attached to the program of civic studies in the national school system had removed the mention of human rights from the topic of the rule of law. The following week, a reply written by Asaf Mal’ach, the chairman of the of the committee on the subject of civic studies in the Education Ministry, was published in Haaretz’s opinion pages. What this intellectual exchange of blows was really all about was the definition of “the rule of law,” which is one of the substantive issues that divide the right-wing religious political parties from the center-left-Arab ones.While the former are inclined to accept the formalistic definition of the rule of law and advocate a formal democracy – which places primary emphasis on the wishes of the majority – the latter opt for a substantive definition that corresponds with the principles of the liberal democracy, which accepts the rule of the majority, but is equally concerned with minority and human rights and seeks to protect them from the arbitrariness of the majority.The formalistic definition is also less concerned with the content of laws, and more with procedural attributes of the law, which must be prospective, well-known, and have characteristics of generality, equality and certainty. Though this approach allows for laws that protect democracy and individual rights, it recognizes the existence of the rule of law in countries that do not necessarily have such laws.The substantive definition insists on the system including laws that protect certain substantive rights that are considered to be crucial to the existence of a liberal democracy, and attach great importance to legality and constitutionality – i.e. to judicial review, which the formalists feel is too dominant and seek to limit.The confrontation regarding the pedagogic instructions provided to the teachers of civic studies in the national education system clearly reflects the changing times, and the fact that the policy-makers are no longer of the liberal school that was prominent in shaping the civic studies programs until not too long ago.Though it is certainly understandable and legitimate that the new guard should wish to leave its imprint on the way the subject is taught. The question is whether the way they are trying to achieve this is wise. Already there is great unrest in the non-religious education system over the issue of the religionization that has penetrated the system not only through the formal curriculum, but in various backhanded ways as well.Adding diktats on how the essence of democracy and the rule of law should be taught – based on an approach that is rejected by many parents as being contrary to the democratic principles they believe in, rather than encouraging open and free discussions that introduce the pupils to the various approaches and options – will merely add fuel to the fire and lead to the growing estrangement and bitterness of large sections of the population.It is not just that youths coming from right-wing religious backgrounds should be exposed to the issue of the human rights to which the Arab population, Palestinian detainees from the West Bank and Gaza Strip, Africans asylum-seekers and children born in Israel to parents who came to work here from the Philippines, are entitled within the framework of the rule of law as it exists in Israel today, but left-wing and Arab youths should be exposed to equally serious breaches in the human rights of Hilltop Youth, even if they are being detained by the police as suspects of committing heinous crimes.Yes, the rule of law applies to everyone, both in terms of abiding by it, and in terms of enjoying its protection. No one is above the law – not even the prime minister, and no one is too weak or too despicable to not enjoy its protection.
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