The first legal ruling handed down in the state of Israel includes a short sentence to serve as a guide for rule of law in the country that was taking its first steps.
"Criminal law should not resemble a game of chess," it states.
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Criminal proceedings are neither a game nor a sport – not chess, and not soccer. They can take away a person's freedom for years, destroy his life's work, taint his good name, and label him and his relatives. Therefore, such proceedings should be handled with seriousness and moderation, not out of a desire to make headlines, "spin," or "gimmicks," as if we were talking about a circus performance.
A hearing is not an empty gesture intended to check off an obligation. Legally, a hearing is a fundamental element in defending the rights of a suspect or a defendant, a keystone of the legal system as a whole and constitutional law in particular. A hearing is an expression of the human right of every person, whether it's the prime minister or a "regular guy," to due process.
A hearing implements the "rules of natural justice," which are designed to ensure a person's rights before decisions are made that harm them. The goal of a hearing is to allow a fair, appropriate opportunity to hear the accused's side and allow him to present his arguments before any decision that might harm his rights is made.
That is what happens when a person is about to be fired, or when social services seek to take someone's children away. That is what happens when a local authority wants to build a cellular antenna that sends off dangerous levels of radiation, or when the prosecution is about to try someone for a crime.
If all branches of the law are required to exercise caution, criminal law is required to do so times seven, because it deals with true life and death matters. By labeling someone a "suspect" in a crime before he is indicted does serious harm to his good name. In many cases, when the very suspicions lead to him being suspended or fired from his work, those suspicions take the bread out of his family's mouths.
Therefore, when we are talking about a pre-indictment hearing that could turn a suspect into a defendant, meaning he will face the torture of a lengthy trial that could drag out for years, and face the risk that his freedom will be revoked for years to come.
So the hearing has become a necessary step in the criminal process, certainly when there is suspicion of serious crimes and is subject to various rules that have been entered into law, some at the instruction of the state attorney.
The first, biggest rule is that the hearing will take place "with an open heart and a willing spirit," without pretense or prejudice. A hearing in front of officials whose minds are already made up will be nothing more than a hollow show carried out for appearance's sake. This is true no matter who the suspect is.
In the case of a hearing that is held, for the first time in the country's history, for a sitting prime minister, correct conduct and public faith are even more important. First of all, since the higher status a person holds, the more his name can be sullied, and the larger the potential for harm. Secondly, because the proceeding does not take place in secret, but is known to all (and that's a good thing).
Unfortunately, the current proceedings – in violation of the law and inappropriately – are being carried out in a court of public opinion, not where they should be. For example, the endless leaks from the questioning sessions, or the inappropriate attempts by the prime minister's lawyers to hold a public hearing that is doomed to failure. Even before a single word is uttered in the hearing, a widespread debate is being held across all media outlets about whether the prime minister is guilty or innocent. Whether we want it to or not, the background noise will seep into the hearing itself, as well as the entire criminal proceedings, and taint them. A just trial must be handled according to the laws of evidence, not according to mobs in the city square. That's not what actually happens, and it's a shame. These unacceptable, flawed phenomena do serious harm to the public's faith in the legal system and the administration of justice, no matter what the final results are.
As has been said more than once, the rule of law carries neither a sword nor a wallet. The faith of the public is an important tool to keep it thriving, and when that faith wavers, either on the Right or the Left, we all lose out. This is the only country, and the only legal system, we have.
