Paul Mirbach

The Presumptuousness of Innocence

In the early hours of Thursday morning, Israel’s democracy wobbled just a little bit more as one more supporting pillar was removed. As the law which now prohibits the police from issuing a recommendation upon passing a case over to the State Prosecutor enters Israel’s law books, one is left wondering how many more such pillars can be removed without having the roof collapse on top of us all.

The Likud party and its satellite coalition partners enjoy a solid majority which basically allows them to pass virtually any law they like, and trampling on the very principles of our democracy in order to consolidate their continued hold onto power, is a small price to pay, it seems. Since it is a foregone conclusion that any bill they want to pass, will pass, any real debate on the subject is rendered a mere formality. They are not even interested in the arguments, for or against, what interests them is the result, not the process.

Persuasion through reason, it seems in now underrated. It has become a common sight to watch an opposition Knesset member speak to an empty hall, save the one “designated cabinet minister on duty”, who sits in the hall during the debate, spending more time texting on his cell phone than listening to the speakers. The mere fact that there exists a “duty” called the “designated cabinet minister” is a sad testament to the dire state of our democracy.

Ever since the opening of the Knesset’s winter session, it seems that the only issues that have concerned these public officials, is how to shield themselves from public scrutiny and criticism. Any sense of mission and desire to serve the people, is merely coincidental. They have been obsessed with themselves, with how to prevent their vaunted positions from being placed in jeopardy and how to perpetuate their control in order to hold on to their power. So, as far as they are concerned, the Holocaust survivors can continue to huddle in their freezing apartments with blankets around their shoulders as winter approaches, and the disabled can continue to brave the harsh weather and block junctions in protest of the pittance they receive from state, which does not allow them to live with dignity. Our elected officials are too busy hammering out another bill to ensconce them in their deer-skin chairs.

On average, it takes months, even years, for a legislative bill to pass three readings. Many end up being put into deep freeze, because the process is interrupted by elections. Yet, miraculously, this law, “Hok Hahamlatzot” managed to jump through all the hoops – the proposal, the first reading, the drafting of the law in the appropriate Knesset committee and the second and third reading – including a 54 hour long filibuster in protest – in the short space of two months! Anyone who believes that this urgency and uncharacteristic efficiency, (not to mention the serendipity of the timing) is completely unrelated to Netanyahu’s investigations and the approaching moment of truth at their conclusion, is either certifiably naïve or self-deluded. That, in itself, should be enough to strip away any feigned argument of the conceptual appropriateness or necessity for this law.

This law takes away the basic democratic right for the public’s right to know. Let me be clear: this law has absolutely no value when talking about the average citizen. It is a law tailored specifically for the elite, the publicly elected officials, the tycoons and the power mongers. Nobody gives a damn what the police recommends in cases involving the ordinary citizen charged with fraud, or money laundering. It exists only to protect the public officials, the men and women in power. Not only do we have a right to know what people we voted for are suspected of doing, it is what keeps public officials honest.

Here’s an example: We have an Attorney General, who has the sole authority to decide whether to prosecute a high ranking official, upon receiving the material from the police. Our current AG is Avihai Mandelblit. His previous job was the Cabinet secretary, a position he held for four years. As Cabinet Secretary, he worked closely and in confidence with the Prime Minister, Binyamin Netanyahu. Netanyahu appointed him to the position of Attorney General, a position he assumed immediately upon finishing his job as Cabinet Secretary, without even a cooling-off period. Not one day. The position opens up further employment opportunities when he finishes his job, like the Supreme Court. To say that Mandelblit is Netanyahu’s man, is an understatement. Not only that, it places him in the invidious position where he has to decide where his true loyalties lie – to the law? Or to the man who has groomed him, fostered him and gave him so many opportunities?

Now, with the new law, after receiving the results of Netanyahu’s investigations, what would we, as the public think, if after three months he announces that he sees no grounds to indict? How can we judge if his decision is based on his professional opinion, or if he is quashing the case out of loyalty to Netanyahu? And even if his decision is purely professional, how can we trust him? We have no way of knowing what the police recommended. Thus, this law undermines every citizen’s faith in the integrity of the system. We have no way of knowing if the corruption has extended to the top legal authority in the country, or not. And, it doesn’t even matter whether it has or not. The very fact that doubt exists, undermines our trust in the system. That is the danger of this law. The fact that open investigations are not included in the law, is irrelevant to the danger that exists. Who is to say that there are no more corruption scandals, perhaps even more damning than the present ones that we don’t even know about yet? Who is to say that Netanyahu will not be implicated in the submarine scandal? Or that the huge Bezek scandal will implicate him in one way or another? Given the number of scandals Netanyahu has generated up until now, from the Amedi scandal, to all those we know of today, there is a likelihood that there will be more. And, then this law will provide him with a stay out of jail free card.

Netanyahu has many people he sends out to defend him. They all speak about the presumption of innocence, about he too is a citizen and should be afforded the same rights as any Israeli citizen. However, I disagree. Firstly, not all Israeli citizens enjoy that presumption of innocence. Just ask the family of the Bedouin driver killed by police in Umm al Hirram. He was an Israeli citizen and he was presumed to be a terrorist. Secondly, the moment you take public office, the moment you are elected to represent the people, in doing so, you relinquish your right to be judged by the same standards as a normal citizen. The moment you become a Knesset member and you are given parliamentary protection from prosecution, you are no longer a normal citizen. Therefore, in that same spirit, precisely because you are in a position of trust, you are held to a higher standard. Any breach of that trust, or even suspicion of breach of that trust, is in the interests of those who voted you into office, to know about.

For some reason, breach of trust is not considered to be a serious crime. I think it is the most serious crime. Not only because it is a betrayal of the trust that people gave you, but because it undermines the entire system of representative democracy; if you cannot trust those you elect, what expectation can one have that they will represent your interests? That is the very foundation of democracy. So, in my opinion, given the toss-up between the presumption of innocence of a public official – and therefore preventing the public’s right to know about investigations into alleged crimes by such an official – or maintaining the sanctity of trust between voter and elected official – and the integrity and trust in the democratic system as a whole, the latter takes precedence. The insidious danger associated with the former is too high a price to pay.

Thus, I view the argument of presumption of innocence as an arrogant argument, lacking the requisite respect and seriousness with which elected officials should view their commitment to the public they serve. Therefore, to demand for them the presumption of innocence, is more like a presumptuousness of innocence, and this law, which eats away at our democracy like termites in the woodwork, needs to be reversed by the Supreme Court forthwith.

About the Author
Paul Mirbach (PEM), made Aliya from South Africa to kibbutz Tuval in 1982 with a garin of Habonim members. Together they built a new kibbutz, transforming rocks and mud into a green oasis in the Gallilee. Paul still lives on Tuval. He calls it his little corner of Paradise.