Sunday, September 26, 2010

Mad Men

During the summer and after a trial that spanned several years, a Jerusalem court acquitted Knesset member Tzarchi Hanegbi, formerly of Likud and now of Kadima, of fraud and breach of trust charges arising from political appointments made when he served as environment minister between 2001 and 2003 and by a split 2-1 decision convicted him of perjury for denying that these appointments were political in nature.

By Israeli criminal justice standards in high-profile cases, the Hanegbi verdict is a case of speedy determination, witness by contrast the nearly decade-long investigations of Foreign Minister Avigdor Lieberman and the endless and often trivial pursuit of Ehud Olmert, the former prime minister. I have no brief for either man, yet the expenditure of millions of dollars – and still counting – on these cases, as well as enormous manpower, is legal lunacy that should not be tolerated. When special prosecutor Ken Starr targeted President Clinton on a smorgasbord of charges, some quite serious, there was much protest about how much time and money the investigation consumed. In Israel, the pursuit of politicians is overtime activity.

The notion that political appointments can be criminalized absent any showing of bribery is bizarre, even Kafkaesque, and antithetical to the ideal of democracy which mandates that those who are victorious in elections run the government, subject of course to the protection of minority rights and against serious abuses. This doesn’t necessarily result in good government; that is the price to pay for democracy. The antidote is the ballot box and other political processes, not in criminalizing politics, and not, to borrow from Judge Learned Hand about whose court I once wrote a book, to have Guardian Angels protect us against democracy’s inefficiencies.

The anti-democracy movement in Israel, of which the Hanegbi prosecution is but one example, is fed constantly by the nation’s Supreme Court which has embraced authoritarian principles, including the authority to decide whether appointees to top positions are fit to serve. This is in fulfillment of the doctrine promulgated by Aharon Barak, the Supreme Court’s former President, that Israeli democracy must be saved from itself through judicial fiat.

Interestingly, the zeal to proscribe protekzia does not extend to the judiciary, including the Supreme Court, the branch of government that inherently is the least democratic. The selection process of Israeli judges has been controlled, from top to bottom, by the president of the Supreme Court and other judges who do his or her bidding. This is rotten to the core. Can we imagine an arrangement where Chief Justice John Roberts decides who should fill vacancies in our Supreme Court and lower federal courts?

In the Hanegbi matter, the judicial process has been weird. The verdict ran to more than 1,000 pages – this is not a typo – and the summary alone took 60 pages. That’s not all; the case is not over and not only because prosecutorial zealots may appeal in order to protect their cherished right to criminalize patronage. The time taken by the judges to decide on Hanegbi’s guilt and the War and Peace size of the verdict were not sufficient to determine whether his lying about the appointments constitutes moral turpitude which would require his ouster from the Knesset and being barred from public office. There will be another ruling about that.

This case is the first such prosecution and hopefully it will be the last effort to criminalize political activity, although this may be too optimistic to expect. When, as in Israel, the police-prosecutor-judicial triumvirate devote enormous resources to the targeting of politicians, there is severe collateral damage in the neglect of other criminal justice responsibilities, some that are very serious, including police corruption, ordinary crime and the continuing sordidness of Israel’s sex industry and the forced prostitution of hundreds and probably thousands of young women.

When judges spend years clinically examining the careers of the Hanegbis, there is a huge cost in the inability to do justice because other litigation is delayed. The dockets of Israel’s courts are chock full of cases that are awaiting attention and while this is a condition of all modern societies as litigation has exploded, the situation is about as bad as it can get in Israel.

Additional collateral damage arises from the disincentive for talented and conscientious persons to engage in public service, as they feel that if they did the police would quickly open a file on them. In an editorial challenging the Hanegbi prosecution, the Jerusalem Post cited a book by Professor Yossi Shain called The Language of Corruption in Israel’s Moral Culture whose theme is that “the Israeli judicial approach is counterproductive. It creates the impression that Israeli politics suffers from rampant corruption. This undermines the public’s trust of politics and politicians.” This judicially-created attitude leads, in turn, to the usurpation by the judiciary of responsibilities that belong elsewhere in democratic societies.

The Israeli penal code is overloaded with “Thou Shalt Nots” that while not mandating lashes for transgressors results in excessive prosecutions and prison terms. In this regard, Israel follows in the path of the United States. It’s time for Israel to join the ranks of civilized nations and stop criminalizing every misstep. Far greater reliance should be placed on civil penalties, mainly fines. My advocacy against excessive criminalizing of wrongdoing may be interpreted as tolerance of wrongdoing. That’s not the case. My point is that there are unintended wrongs and mistakes and minor wrongs and mistakes. These are factors that should be taken into account before there is a rush to prosecute.