“The criteria for accusing officials and other suspects must be equal”
Edna Arbel
Justice Magazine No.21 Summer 1999
Edna Arbel
This year Israel is celebrating its 50th anniversary, and we are proud of the development of the legal system during this time. We believe that Israel has achieved a well-earned place in the family of modern and democratic States. In 1992, the Knesset enacted two Basic Laws, the first – the Law of Human Dignity and Liberty, the second – the Law of Freedom of Occupation. By the enactment of these two Basic Laws, our legal system has gone through an important change.
These Basic Laws are founded on the fundamental collective principles and beliefs of the nation as reflected in our Declaration of Independence. They have exercised an effect on all branches of law. They also have a direct effect on the subject before us: the investigation and prosecution of public figures.
In the last few years, the subject of criminal proceeding against public figures came to the center of public discussion, within and without the legal community. In this brief presentation I will examine the framework of the administrative and criminal law on this issue. I will discuss it in four stages: the first stage – a brief historical review of the subject; second – the decisions of the Supreme Court; third – the policy of the Attorney General; and fourth – the debate over the prosecution’s policy.
I will begin with a brief historical review. In the early years of the State, the executive had disproportional power in comparison to the parliament and the judiciary. The law enforcement authorities, headed by the Attorney General, faced from the very beginning difficulties in enforcing the law against prominent public figures. In the 1970’s, the prosecution authorities, headed by two Attorney Generals, the current President of the Supreme Court, Aharon Barak, and his predecessor, Justice Meir Edna Arbel “The criteria for accusing officials and other suspects must be equal” Shamgar, demonstrated a notable level of persistence and consistency in enforcing the law on public officials, under difficult conditions and in the face of strong criticism. Several scandals relating to major political and economic figures resulted in criminal prosecution. For example – the Ben-Zion case, in which the Executive Director of Israel-Britannia Bank, was arrested and later prosecuted, convicted and sentenced to 14 years imprisonment for theft and fraud. Today it is less likely to happen.
In another example, Michael Tsur, the executive director of a huge concern, “The Israel Company”, and former Director General of the Ministry of Industry was sentenced to 15 years for similar offences. This growing trend of investigating and prosecuting public figures signaled to the nation that the political elite was equally subject to the rule of law. What are the standards set by the Supreme Court? The prosecution kept acting professionally and independently of the political establishment. It has always been obliged only to the law and the precedents of the Supreme Court. In the early 1990’s, the Supreme Court made a substantial breakthrough when it dealt with the mandatory suspension of high public officials, following an indictment. The Court held that a Minister, Mr. Deri, head of Shas party, and a Deputy Minister, Mr. Pinchasi, charged with offences of fraud or bribery, must be removed from office. This decision emphasized the importance of a cleanhanded public administration which is necessary to assure the people’s trust in the public authorities.
These decisions and others establish the high normative standard for the leadership of the State. Moreover, the Supreme Court has held explicitly, that the norms imposed on public figures are stricter than those generally applied. On that basis, the Court justified harsher sentences for public figures. The Court stated that high ranking officials must serve as an example to other civil servants and to the public at large. The Court has not only condemned personal corruption, it has also condemned public corruption, from which a political party gains. The interest of a political party, cannot be put above the law.
What is the policy of the prosecution regarding public figures? According to our legal system there are two criteria for issuing an indictment. The first is the existence of sufficient evidence; the second is the existence of public interest in the indictment. There are a growing number of cases in which the Supreme Court, sitting as the High Court of Justice, is asked to review decisions of the Attorney General. Only very rarely does the Supreme Court intervene in a decision of the Attorney General and the prosecution, not to prosecute due to lack of sufficient evidence. On the other hand, on the issue of public interest, the Court is somewhat more inclined to review the Attorney General’s discretion.
In the case of a Minister for Religious Affairs, Mr. Shaki, the High Court held that in principle there is always a public interest in prosecuting public figures for offences which were committed during the course of their duty. Therefore, the Court instructed the prosecution to issue an indictment whenever there is sufficient evidence of administrative corruption. The enforcement of the criminal law in such cases is necessary to defend the public interest effectively. For example, when a long time elapses from the time of the offence, this is a relevant consideration against prosecuting a suspect. However, when the suspect is a public figure, this consideration has much smaller weight. Therefore, in the case of the head of the banking system, the Court overruled the Attorney General’s decision not to prosecute the bankers who were suspected of stock market manipulation felonies. The Supreme Court emphasized the importance of the role of the prosecution in shaping appropriate standards of conduct.
What is the question the prosecution must ask itself when deciding to issue an indictment? The question with regard to the evidence is – whether there is a reasonable possibility for conviction. The principle was established in many cases and reconfirmed in the Bar-On case. In that case, senior members of the government, and other public figures, were suspected of breach of trust relating to the appointment of the Attorney General. The Attorney General and I decided that there was not enough evidence to indict most of the suspects in this affair. This decision was challenged in the High Court. The decision not to indict was upheld in this instance. There was a lot of criticism of our decision. In approving the decision on the basis of the principle of reasonable probability for conviction, the Court held that this same principle should be applied to public figures as well as to common people, since all are equal under the law.
In the debate over the prosecution’s policy in the public arena, and especially within the judicial community, criticism was raised against the prosecution, claiming that we are too harsh on public officials. This criticism followed several acquittals. These critics claim that not every misbehaviour justifies an indictment. They argue that there should be a special forum to deal with such behaviour, for example, a disciplinary court. Above all, they say, that we should adopt a stricter examination of the evidence, and have even more severe criteria in accusing public officials. One of their main arguments is that the damage caused to the public official is irreversible, even if the official has been acquitted. To that we respond: first, that we believe that the criteria for accusing officials and any other suspects should be equal. Any person is damaged when being indicted in the criminal court, whatever the result might be.
Second, in comparison to other offences in the penal law, the offence of breach of trust which often applies to public figures, is rather problematic. The borderline between ethical misconduct and a criminal offence is in many cases vague. The BarOn case can fare as an example of that. This lack of clarity is caused by the vagueness of the element of the felony breach of trust. That is why, when we are convinced that this offence was committed, it is our duty to bring it before the Court.
Third, these difficulties in such cases are intensified since the defendant has, in most cases, a very long and positive record of public service and activity. Because of that, and due to the nature of the offences, the existence of the mens rea is sometimes doubted. So, it can be seen, that in most of the recent cases in which public figures have been acquitted, the prosecution succeeded in proving the factual elements of the offence. In these cases the defendants were acquitted since the judges had doubt as to the existence of mens rea. Even so, in most cases, the courts criticize the behaviour of the defendant. Furthermore, it is important to emphasize that the prosecution is very careful and cautious before charging anyone, including public officials. Complicated cases are examined by the District Attorney’s office, and by the State Attorney’s office. There is also a special rule that any indictment against a public official must be confirmed by the Attorney General.
In addition, public officials have the right to a hearing before the final decision made by the Attorney General. Moreover, the Attorney General and the prosecution’s decision can be reviewed by the High Court of Justice. In conclusion, no legal system can be expected to cure all ills of society. The tradition of honest government, culture and education, should also play a role in the struggle against corruption. However, the legal system has a major role in this struggle. The administrative case law emphasizes the need for incorruptibility and good faith in public administration, in order to assure the public’s trust in the administrative authorities. The prosecution has a major role in enforcing the appropriate standards through the criminal law. Therefore, the prosecution has to steer its way using it’s professional knowledge and conscience, maintaining it’s independence.
The struggle against political crime, and for an honest and corruption-free civil service, is a major public goal. We have to face our courts with honesty, integrity and good faith. Our principle aim, as always, is to assure appropriate norms and standards of public administration. When we come across corruption and have sufficient evidence, we will prosecute the suspects no matter who they are. This was our way throughout the years, and this will be our way in the days to come. We have to be guided by our professionalism, independence and impartiality. Only in this way may we gain the public’s trust and safeguard the rule of law.
Edna Arbel is a former justice on Israel’s Supreme Court. In 1999, Arbel was the State Attorney of Israel.
