Prof. Paul Eidelberg
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.