If politics, as German statesmen Otto von Bismarck once said, is "the art of the possible", then the law is sometimes "the art of the impossible". It seems there is no tangle that legal experts cannot untangle if they put their minds to it. As a shrewd politician once put it, "I don't look for a lawyer who will say 'no' or tell me 'if', but rather one who will tell me 'how'".
Thus, the hopes in some quarters, that the legal system will rule out a retroactive and personal law, which may be legislated soon – a law that will prevent Benjamin Netanyahu from continuing to hold the position of prime minister –, may be crushed.
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Yet such a law, if enacted, is hardly devoid of problems. Proper legislation is put into effect behind a "veil of ignorance". It does not favor one individual over another but rather advances a general aim that is worthy in and of itself. It looks to the future rather than concentrating on the present; it is oblivious to current events, serving, above all, the interests of the public, and not just parts thereof.
"Person-tailored legislation", meant to promote a specific individual or prevent that individual from fulfilling a certain role, fundamentally violates the rule of law. Often it also violates the basic principles of the separation of power, as well as the "royal" principle of equality before the law – a cornerstone in any lawful regime worthy of the name.
Nevertheless, Israeli legislation, from its very beginnings, has seen abundant personal legislation. Not one or two, but dozens of laws have obviously been legislated in favor of or against a specific individual.
In Israel's early years, a law was amended in order to appoint to the role of Justice of the Supreme Court the outstanding historian and Talmud scholar Simha Assaf. Despite his scholarly merits, Assaf had never studied law nor worked as a lawyer. The amendment stated that a Justice of the Supreme Court could be a "true expert of the law" – a particularly vague formulation that, in Hebrew, is rendered by a linguistic innovation that differentiates between the "expert" and the "lawyer".
Similarly, when, for strictly political reasons, a need arose to allow the chairman of the Histadrut labor federation and the head of the National Labor Federation to simultaneously serve as Knesset members, the law of immunity for MKs was amended: The new law stated that, although an MK could not fulfill another role (such as mayor), the prohibition would not apply to individuals heading workers' organizations.
When politicians sought to legalize the broadcasts of "Channel Seven", RIP, a special law was legislated in order to exclude the channel from complying with the conditions of the tender applied to other local and special-purpose channels. Eventually, the law was struck down by the High Court of Justice since it was deemed to violate the principle of equality before the law. In another case, the law was amended in order to prevent Yigal Amir, the assassin of PM Yitzhak Rabin, to appear before the Parole Board like other prisoners in order to request that his life sentence be shortened by "one third". These are just a few examples out of many.
Needless to say, a new law is never formulated in a personal manner but is always general. This general formulation conceals – for those unaware of the political background – the law's personal dimension. Thus, for example, in Amir's case, the law applies to "a prisoner for life convicted for the assassination of a prime minister for political-ideological reasons" – as if many more such assassins are at large.
In principle, the retroactive application of a law is also foreign to the true rule of law. A law, by nature, is intended to direct future behavior and to guide the citizenry towards the path they must take and the actions they should perform or avoid.
When the law applies legal consequences – certainly those pertaining to criminal law, but others as well – to actions performed in the past, the individual has no ability to turn back the clock and behave in a manner that will not turn him into a criminal or violate his rights.
However, in this case, theory is one thing and reality another. Although the court has often expressed its reservations with respect to retroactive legislation, it has generally avoided disqualifying it. In the rare cases when such laws were disqualified, the court based its decision on the principle of equality. Yet even in such cases, and despite its "activist" image, the High Court of Justice does so sparingly. If the proposed law is legislated with regard to Netanyahu, it is likely that the chances for its disqualification are very low.
