The Foundation for Constitutional Democracy

01-Jan-2002

The Rule of Law

Filed under: Democratic MethodsSupreme Court/Judicial — eidelberg @ 10:31 pm Edit This

The rule of law is a basic principle of the Torah and of classical democracy. The rule of law affirms that those who make the laws are obliged to obey the laws. Accordingly, Jewish law enables private citizens to bring public officials—including a king—to the bar of justice. Consistent therewith, the American Supreme Court held that a private citizen can institute a civil suit against a President, as indeed occurred in the case in which (former) President Bill Clinton was accused of sexual harassment.

The rule of law as just defined hardly exists in Israel. Abbie Nathan and Shimon Peres made contact with Yasser Arafat in violation of the 1986 Prevention of Terrorism Act. Mr. Nathan, a private citizen, was incarcerated for six months for that felony. Shimon Peres was never indicted.

Moshe Feiglin was convicted of sedition (!) for having organized a demonstration that caused a major disruption of traffic in Israel. In 1991, Arab Knesset Member Hashem Mahameed urged Arabs in Gaza to “fight the conquerors [i.e. Israel] with all the means they [these Arabs] have,” yet he was not indicted for sedition (nor for violating the Prevention of Terrorism Act). In fact, the Knesset did nothing more than suspend for three months Mahameed’s parliamentary privilege of unrestricted access to all areas of the country! A travesty of justice and the rule of law.

The alternative to the rule of law is the rule of men. The rule of men entails arbitrary government and, inevitably, officially sanctioned violence against citizens who protest government policies. It is in this light that we are to understand why Israeli police often employ undue force and even brutality against citizens engaged in peaceful demonstrations. Backed by the government, hence by its Ministry of Justice, the police can resort to such violence without being liable to compensatory and punitary damages—something unheard of in the United States.

Countless violations of the law (or of administrative procedures) by elected and appointed officials are annually reported by Israel’s State comptroller, yet virtually nothing is done to bring the culprits to justice. The citizen (as well as the State Comptroller) is powerless to correct these abuses. And so, not only is justice intermittent in Israel, but the deliberate sense of the public is ignored between elections in this occasional democracy.

To remedy this undemocratic state of affairs, Israel requires a parliamentary electoral system that will make Knesset Members (MKs) individually accountable to the people in regional elections—the practice of 74 out of 76 other countries with democratic elections. MKs will then be less subservient to their party leaders (especially those who head cabinet ministries), and will thus be more capable of performing the important function of administrative oversight—something impossible under the present system.

Now, given a more independent Knesset, it will be possible to reform Israel’s judicial system. The Foundation for Constitutional Democracy, an Israel-American research organization, suggests the following reforms:

First, as in America, a private citizen who suffers injury (as defined by law) from the act of any public official may sue the official for compensatory and punitive damages. The implementation of such a law would dramatically reduce not only police brutality, but the thousands of false arrests which occur each year in Israel.

Second, any suit involving a public official will be tried by a jury composed of qualified private citizens, namely college or Jewish academy graduates. Such a law would greatly diminish the number of “cover-ups” that enable public officials to violate the law with impunity.

Third, no person convicted of a felony will be released from jail prior to the termination of his sentence without the approval of a parole board consisting of qualified private citizens. This will preclude the release of terrorists.

Fourth, any person convicted of a felony will be required to work within the confines of his prison for the purpose of compensating his victim or his victim’s family.

Fifth, no person will be imprisoned for violations of the civil law. Instead, he or she shall be required to compensate, by two-fold, the injured party.

Sixth, plea-bargaining will be prohibited. This piece of legal chicanery not only undermines respect for law but enables criminals to avoid justice.

Seventh, doctors working in government hospitals should be subject to (substantial) malpractice suits tried by juries composed of private citizens having the qualification previously mentioned. (This will improve the quality of medicine in Israel.)

The above provisions are but a sample of what is required to make Israel an authentic Jewish democracy, where the rule of law and justice prevail.