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.

 Follow Israel Hayom on Facebook and Twitter

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.

The post Personal legislation violates the rule of law appeared first on www.israelhayom.com.

The problem is that more often than not, there is a sizable gap between theory and reality.

American novelist Joseph Heller was right when he coined the phrase, "Just because you're paranoid doesn't mean they aren't after you." Prime Minister Benjamin Netanyahu is hardly the first public official to say that he is being slandered in vain and he won't be the last. But we have to remember that just because numerous public officials make such statements – so often it seems that they have become part of our daily routine – does not mean that they are fundamentally unfounded.

Follow Israel Hayom on Facebook and Twitter

Anyone who objectively – if that's still a thing – looks at the media's abuse of the prime minister over the past few years cannot help but notice it is nothing short of extraordinary in scope, style, and intensity.

Even those – and there are quite a few of them – who argue that Netanyahu has brought this on himself with his actions and statements, will have to eventually admit that something here is different.

An in-depth, professional, sober, and unbiased review of what has transpired over the past few months, and especially the last few days, further underscores this: The incessant leaks from the police investigations raise difficult questions about the existence of the Israeli rule of law and the tactics employed by law enforcement officials.

Regardless of the current legal predicaments plaguing Netanyahu, one has to wonder if the time has come to do some significant soul-searching. How is it that, before any indictment was officially filed and long before the process of discovery took place, we all witnessed a media blitz consisting of confidential material that was published in the media? The public had a behind-the-scenes seat to the investigations against Netanyahu, learning everything about them almost in real time.

It seems that everyone has forgotten that from a purely legal standpoint, leaking and publishing investigative material is a felony that constitutes obstruction of justice. Indeed, for many years, the rules against such media leaks have not been enforced, but this only further undermines the rule of law.

Worse, media leaks lead to many people, especially public figures and predominantly the prime minister, being tried by the media and in the court of public opinion – not the court of law, which is where justice should be done.

The issue of selective enforcement – another negative element that has no place in a country predicated on the rule of law – is also far too common: Various suspects and defendants, particularly public figures and tycoons, are clearly treated differently and more severely by the various law enforcement agencies (police, prosecutors and the courts) than their peers, let alone "ordinary people."

This problem affects the entire process, from the decision to open an investigation and the allegations included in indictments, as well as the legal proceeding themselves – right up to the severity of the verdict.

Apart from selective enforcement being in direct infringement of the principle of equality before the law, it is extremely difficult for the public to trust law enforcement if that is how its officers conduct themselves.

Unfortunately, the Orwellian vision of "all are equal, but some are more equal than others," is unfolding before our very eyes.

This is a democratic horror show, and failure to stop it now could be devastating to Israel's existence as a justice- and truth-seeking society.

The post The truth should be the only option appeared first on www.israelhayom.com.

"Criminal law should not resemble a game of chess," it states.

Follow Israel Hayom on Facebook and Twitter

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.

The post This is the only legal system we have appeared first on www.israelhayom.com.

First of all, law enforcement will have to examine whether, beyond the ethical and disciplinary problems, the text message exchange was also criminal.

As in other cases, it is necessary to file an official complaint against the lawyer or the judge involved before an investigation can be launched. By Monday afternoon, it had already been filed.

By law, when police have grounds to suspect that a crime has been committed, they must begin investigating. This is especially true in this case, which also touches on the principle of equality before the law, which is a bedrock principle in any rule of law worthy of the name.

The investigation must be conducted quickly, if only to prevent the legal process from being dragged out unnecessarily and minimize another blow to the faith of the public in law enforcement. Many fear, albeit incorrectly, that judges and prosecutors get a celebrity discount when the legal process affects them personally. The investigators will be asked to track all the text message exchanged between the judge and the prosecutor (and possibly other prosecutors), including ones that were not reported by Channel 10, and evaluate their content. Only after that will we know whether it was a momentary lapse, however serious, that does not merit criminal proceedings, or something more serious.

In any case, even when the investigation is over and the evidence has been examined, the attorney general will have a lot of leeway to decide whether to take this case down the criminal road or to take more moderate action such as disciplinary steps against the suspects and their voluntary resignation.

The immediate suspicion that comes to mind at this point is obstruction of justice, a catch-all offense usually attached to much more serious crimes that rarely stands on its own. The broad definition of obstruction of justice leaves the prosecutorial authorities room to maneuver. The law interprets this crime as "behavioral," regardless of the outcome. In other words, there is no need to prove that the actions in question actually obstructed justice. The potential of the actions to do so is enough.

Therefore, even if the people involved prove that the text messages had no influence on the results of the legal process, that won't be enough to exonerate them. Like any other crime, it will be necessary to prove beyond reasonable doubt that the acts in question met all the basic criteria of the crime, including the stipulation that it was committed "with the intent of preventing or causing the failure of a legal proceeding or [causing] a perversion of justice." As of now, it appears that this is not the case in the matter of the text messages. If a criminal investigation is opened, Supreme Court President Esther Hayut will have the authority to suspend Judge Ronit Poznanski-Katz for as long as she sees fit, if Poznanski-Katz does not resign.

We need to remember that even a judge and a prosecutor who failed in their jobs deserve a fair process. So it would be best to refrain from stoning them in the city square. Law enforcement authorities should be allowed to do their work and not be rushed to determine the suspects' fate before the fact-finding work is done.

The post Investigate – for the sake of the system appeared first on www.israelhayom.com.

The last thing the judicial system needs at a time when it continues to fight to regain the faith of the public was the Channel 10 report exposing the coordination of the remand of some of the suspects in the case between the presiding judge, Ronit Poznansky-Katz and the deputy council of the Israel Securities Authority's investigative department, Eran Shacham-Shavit. This report could serve to further erode the public's trust in the judicial process. The extent and the content of the discussions between the two are no longer of significance. What matters is that to the majority of the public, the process has already been contaminated, and the outcome, whatever it may be, will not be seen as credible.

From a purely legal aspect, however, the coordination between the two is of less significance. Since the proceedings into Case 4,000 are now at the preliminary stage, the main purpose of which is to repeatedly discuss the remand of the suspects' detention, this failure on both the judge's and the deputy council's parts will not substantially impair the central proceedings.

One can assume that on a personal level, the judge will be the one to pay the price for their actions. But at the end of the day, the contamination of the judicial process at the arrest stage will not have any real influence on the trial itself, should an indictment be filed.

A judge that deliberates the remand of an arrest does not sit in on deliberations in the central case precisely because their exposure to investigation materials and evidence pertaining to the criminal background of the suspect and the danger he or she poses at the remand stage could influence their opinion later on. This is of particular concern when it comes to cases where suspects are alleged to have committed serious crimes such as bribery, which are deliberated at the district court and not the magistrate's court, where criminal proceedings start.

The only possible outcome of Sunday's farce is the premature release of some of the suspects, who will surely argue that the entire case has been tainted in such a way that cannot be rectified even by having a different judge deliberate their remand.

Should he choose to do so, Prime Minister Benjamin Netanyahu can use this current saga as "proof" of his claim that he is being persecuted by the police, even though from a substantive legal perspective, the suspects' arrest has no direct connection to him. If someone were to need direct documentation of the impartiality and the bias of the police and the investigators in the investigation, it has just been handed to them on a silver platter.

It sounds bad, it looks bad and it smells bad. But in the end, only the evidence matters.

The post Evidence matters appeared first on www.israelhayom.com.

As these accusations loomed in the background, reports on Tuesday said that Nir Hefetz, a former Netanyahu spokesman considered one of his closest confidants, offered retired Judge Hila Gerstel a quid pro quo whereby Netanyahu would appoint her attorney general in exchange for her closing a case in which his wife, Sara, was alleged to have abused public funds.

Gerstel refused the offer but did not go to the police with this at the time.

It seems that reality – if these stories are indeed true – is stranger than fiction. This is not another mere casting of bread onto the waters, but rather dumping whole trucks of it. If there is even an iota of truth to these reports, it would rattle the very foundation of all bodies of government. If there is something to these reports, then corruption has threatened the judicial holy of holies, the Supreme Court.

If, however, such an offer was made in earnest and not as a joke, Gerstel should have notified the police immediately and without hesitation, just as Chief Justice Esther Hayut, in whom she confided, should have done. The fact that both refrained from doing so, together with the fact that both had remained silent for so long, raises serious questions over the validity of the story.

A similar peculiarity arises in light of the fact that even if he wanted to, Netanyahu would have been unable to guarantee Gerstel's nomination, as the lessons of the Bar-On Hebron scandal – an incident involving accusations made in 1997, during Netanyahu's first term in office, claiming that former Attorney General Ronnie Bar-On was appointed as part of a deal between Netanyahu and Shas leader Aryeh Deri – ensured that an attorney general can no longer be casually appointed in backroom deals. Gerstel is an experienced and reputable jurist so it is safe to assume she knew this as well.

It is entirely likely that this new story will turn out to be a fabrication – and not a particularly complex one; a ploy used by the police to exert pressure on potential witnesses in other cases and give them an incentive to become state witnesses.

Former Communications Ministry Director General Shlomo Filber has joined the disreputable club of state witnesses, whose members include many criminals. Most, if not all, are involved in serious crimes and are trying to extricate themselves from punishment by making up information the police believe is the "smoking gun." Only when all the facts become clear and we know the price the police were willing to pay for the information they received, will we know if the move was both wise and moral.

Regardless, the need to do some soul-searching is getting stronger, specifically regarding the devious interrogation methods whose stench – just like the leaks – rises from police offices and wafts long distances.

Let the end result be as it may, it seems that all will agree that even the ancient understanding that investigations involve trickery must have ethical and legal boundaries.

Only time – and hard evidence – will tell if this is nothing but hot air or if a cluster bomb has exploded and its shrapnel has dragged the Israeli law enforcement, executive and judiciary down into a bizarre and endless saga.

The post New case or police ploy? appeared first on www.israelhayom.com.

State Attorney Edna Arbel was adamant that there were sufficient grounds for an indictment against Sharon. A draft indictment was prepared, and the only thing needed for a trial to go forward was Attorney General Meni Mazuz.

However, unlike Arbel, Mazuz was not so sure. He said the evidence gathered by the Israel Police did not even come close to the threshold needed for an indictment. Tempers flared at the Justice Ministry during the debate. But ultimately Mazuz put his foot down and declared: "There are those whose job it is to issue recommendations and there are also those whose job it is to decide." Of course, it is the attorney general who has the final say when it comes to indictments in such cases.

If the attorney general can overrule the state attorney, as happened then, he is definitely allowed to ignore recommendations by the police. Under Israeli law, deciding on an indictment is the attorney general's exclusive prerogative. Of course, the views of senior law enforcement officials do carry weight, and the attorney general does have to consider these when he makes this decision.

But the decision ultimately rests with him, and he must exercise this authority with moderation, without prejudice, and with an open mind. It is no coincidence that such matters, which in some respects are on the same scale as capital cases, are handled by the chief law enforcement official at the Justice Ministry.

It is not surprising that the committee tasked with defining the criteria for screening potential attorneys general recommended that candidates must have the qualifications to serve on the Supreme Court. One cannot overestimate how heavy the burden is on the attorney general's shoulders and the sound judgment he has to exercise, especially when the case involves a prime minister.

The Basic Law: The Government stipulates that ministers can continue to serve in the cabinet, even if they are indicted for major offenses, until they are convicted. Even then, they only have to step down if their sentence carries a prison term and a moral turpitude clause.

In the 1990s, the High Court of Justice set a precedent when it ruled that ministers cannot continue to serve when they are indicted for bribery and similar offenses. But the ruling did not mention cases involving the prime minister because such office holders are different and their resignation triggers the resignation of the entire government.

That is why Israeli law sets a higher threshold for when a prime minister must resign: only after he has been convicted and the appeals process has been exhausted, and only if a moral turpitude clause has been attached to his sentence. A majority vote by the Knesset can remove a convicted prime minister from office even before the appeals process has been exhausted, but only if he has a moral turpitude clause in his sentence.

If police findings were enough to bring down a government in Israel, there would be no need for a State Attorney's Office, an attorney general, or the courts. The fact that this is not the case means that those who drafted the law wanted to ensure a government's fate would not be determined by jsut one entity. Thus police recommendations should be taken into account. But should their recommendations decide a case? No.

The Greek island affair taught us that police recommendations and draft indictments prepared by the state attorney are not sufficient to decide the fate of a prime minister in Israel. Some entities recommend, others decide. Let's keep it that way.

The post The police recommend, the attorney general decides appeared first on www.israelhayom.com.