An Insight into Israel’s Jurisprudence

The “public’s right to know” is a given in any democracy. But then, Israel is not a true democracy. Imagine this.

Who ever heard of a court hearing involving a plaintiff and a defendant, where no witnesses were called, with the police willingly accepting statements by the defendant about others unchallenged?

Who ever heard of a realtor, the defendant , clearly defying the laws pertaining to real estate agents , without being called to account?

Who ever heard of a questionable forged signature not being examined by an expert, nor having fingerprints checked?

This type of behavior could not occur, had Israel enjoyed a representative democracy. A key item in any democracy concerns its electoral process. Put simply, it has to do with the methods how voters participate in the appointment of the ruling body. The two primary forms of democracy amount to a choice of a parliamentary democracy or a representative democracy. Israel, unlike 20 other democratic western countries, has the former type of democracy. This translates to citizens voting for a list or slate in national elections.

What one is forced to recognize, is that MK’s feel no obligation to citizen’s who cannot vote for them directly. With representative democracy, where voters chose their parliamentary representatives via electoral districts, citizens are able to influence the composition of a party list and enjoy a relationship with members of the national government.

In Israel, efforts at contacting MK’s, invariably result in receiving an acknowledgement without further action or an excuse for participation or no answer at all. Very different from an American contacting his congressman or senator.

Jerusalem Post June 21, 2017 – Eliyahu Kamisher, “State Comptroller: Thousands of Complaints Against Police, Mishandled.” In this Op-Ed, the journalist takes the Justice Ministry to task for failing to properly handle thousands of complaints and to act on them.

Common failures on behalf of the Israeli police and prosecution, which have been reported, include:
[a] No witnesses interviewed.
[b] Ignoring certain unlawful acts by defendant.
[c] Failure to fully check fraudulent documents.
[d] Perjury ignored.
[e]Failure to indict, a common practice.
[f] Ignoring investigation of a trustee.
[g] Assigning, “No criminal culpability”, despite the facts.
[h] Corruption.

The Jerusalem Post of June 1, 2017 reported on “Will Israel re-open case of American Hiker’s death” by Jonah Jeremy Bob. It points to new testimony indicating that the prosecution allegedly ignored evidence in the death of Ariel Newman.” According to the case file obtained by the Post, neither the police nor state prosecutor ever bothered to interview either of the two witnesses before closing the case against Ettinger and other Yeud officials.”

Now, it is an established criteria in law that witnesses are an important constituent of the administration of justice. By giving evidence linked to the charge of an offense, a witness performs a sacred duty by assisting the court to discover the truth. This is the rational why prior to giving evidence he/she either takes an oath in the name of God or makes a solemn affirmation in the matter of the whole truth.

Later in the reported case by the Jerusalem Post on November 27,2017, “Exclusive : Israel to reopen case of American hiker’s death a second time after ‘Post’s exposes”, one reads, about the resistance of police and prosecutor’s refusal to reopen the case, despite not having interviewed any of the witnesses. Only through the efforts of an astute attorney did they finally concede. Regrettably, there are instances, where they absolutely refused to re-open a case.

Thanks to the voluminous research studies by Arye Rattner PhD., Haifa University’s Chair, School of Criminology, the unbelievable becomes understandable. His remarkable, “The Sanctity of Criminal Law: Thoughts and reflections on wrongful conviction in Israel” speaks volumes. His introduction expresses surprise in the number of instances in which the totally innocent were severely punished. While his paper is primarily concerned with wrongful convictions whereby innocent individuals are indicted, the principles would apply equally in cases where the guilty are freed.

However, despite the improvements to the system in 1995, “The criminal law in Israel—-suffers from many deficiencies and from a great unwillingness to admit its own errors to an extent that make some of us wonder about the sanctity of the criminal law.”

Israel presents itself to the world as a democracy, which of course it is when compared to the Arab countries. Jordan is an exception in that it has attempted to create a viable constitution and a government consisting of a Senate and House of Representatives. Thus far, it has failed, but did succeed in making revisions.

As for Israel’s assertions, one should not use the lowest standard as a denominator, and feel satisfied. One cannot rely on MK’s since they feel under no obligation to assist a common citizen, whose only right is to vote for a list.

Some references on the inadequacy of Israel’s police, prosecution and appellate division, can be viewed in the brief selection of the following media accounts:

“Haaretz: More Than 90% of Complaints Against Police Not Investigated, Ministry Says”
“Times of Israel: State Prosecutor slams ‘problematic’ police recommendations bill”
“Times of Israel: 9 in 10 complaints against police dismissed, watchdog finds”
“”Arutz7: IDF Prosecutor forged document to prevent soldier’s release”
“972 Mag: Selective prosecution: in Israel not all citizens are created equal”
“Haaretz: Israeli Prosecution Ombudsman Warns That Justified Complaints Against Prosecutors Are On the Rise”
“The Jerusalem Post: Israeli’s level of trust in the judicial system at 17-year low, report finds”

There have been some attempts at securing representative government in Israel. As an example, Kohelet’s “A Detail Proposal for a Feasible Electoral Reform” The proposed reform is aimed at achieving the following overall goals:

[a] To make Members of the Knesset [MKs] more accountable and answerable to their voters;
[b] To improve government stability.
[c] Enabling voters to select candidates on the lists submitted by parties for Knesset elections.
[d] Establishing a mechanism for the formation of multi-party alliances.

In the body of Marc Schulman’s TOI, December 31, 2014 blog on “Corruption in Israel -how it got so bad”, he states the following:

” However, there is one final factor that has caused our political system to turn out to be as corrupt as it has seemingly become. The fact that Israeli politicians are not directly responsible to their voters assures a level of cronyism that guarantees corruption will run rampant——- the only people individual Knesset members have to keep happy are the leaders of their party, or at most the political activists in the party. The same holds true for all other people appointed at the behest of a particular party.”

From a December, 2011 comprehensive study by several qualified authors, “Corruption and Retrospective Democratic Accountability”, we are reminded of the many theories of democracy which stress the concept of accountability. In a representative democracy, voters reward or punish elected officials by extending or ending their political careers. Seeking the long-term reward or reelection, officials avoid the short-term benefits of corruption that would put them at risk of early electoral defeat.

Summing up, the Israeli Ministry of Justice defines itself as “—one of the key administrative ministries of the government of Israel. It alleges its function is to render justice and serve the public in the judicial sphere in accordance with government policy, while protecting the rule of law, human rights and the fundamental values of the State of Israel, as a Jewish and democratic state in which all are equal before the law.”

Really? Apparently, in one case a failure to abide by a somewhat academic law governing an appeal date proved to be more important than the laws governing forgery, perjury and other proscribed laws.