How should the Israeli judicial system respond to the trial of former Prime Minister Ehud Olmert? The talk of "causing an earthquake," "cleaning house" and "taking stock of the soul" with respect to the State Attorney's Office is meant to give a familiar context to the drama so that Israelis who were upset by the outcome can find solace in the most fundamental elements of existence (earth, home, soul ). In practice, these actions will not be taken. Systems don't really have souls. They shy from self-examination and in their hour of need the tendency is actually to circle the wagons.
Discussion of the employment future of State Prosecutor Moshe Lador - however natural it may be - takes what should be a system-wide issue and reduces it to a single individual. The answer must be much broader. The necessary change is to the rules of the game: an end to the protocol under which a member of the government must resign immediately in the event of their criminal indictment. Back in the day the idea seemed patently obvious, and at some point the Supreme Court gave it the force of law in a ruling. Now it's time to appeal the verdict.
The Olmert trial has highlighted the power that this mandatory resignation places in the hands of a single official: The state prosecutor has the ability to bring about the immediate and automatic ouster of a cabinet minister or prime minister. That is unreasonable force. It has no real equal in the democratic world, which is based on complex arrangements and the system of checks and balances and which exalts public law.
But obligatory resignation after indictment is a double-edged sword, and its power can also become a terrible burden. A salient example of this is the protracted foot-dragging of the State Attorney's Office under Attorney General Yehuda Weinstein in the case against Foreign Minister Avigdor Lieberman. The recommendation of the police at the conclusion of their investigation was crystal clear. A senior police official at the time, in a private conversation, likened the evidence to "cast concrete" and suggested that conviction was "certain." But since the decision to press charges would seal the political future of a senior cabinet minister who is the head of a major coalition partner, the case has not gone to court.
The problem is not only the hesitation, which after the case of Olmert could lead to terror and paralysis hanging over the work of state prosecutors. As a balance to the enormous power of mandatory resignation, elected officials have the right to a preliminary hearing: a relaxed affair, out of the public eye, a privilege that can also be a boon to the suspect's future defense strategy. This right constitutes a violation of the principle of equality before the law: Ordinary citizens do not have the right to a hearing of this kind.
Naturally, imagining a prime minister or other cabinet member continuing to serve after being charged with criminal offenses is an uncomfortable thought, and one that raises difficult questions about image and performance. But there are also some benefits to putting the choice in the hands of future defendants. Those who decide to step down will be free to conduct their defense without being haunted by a sense of injustice, of having been driven out in a putsch, while at the same time restoring the lost honor to the act of resigning. After all, there is no moral effect to a forced resignation.
Even more important: Those who stay on will face a public ethics test, not only a legal one. Citizens will have the opportunity, for example, to form their own opinions about an elected official who for years received hundreds of thousands of dollars of unreported cash donations that were placed in a secret safe or safety deposit box. About someone whose travel agency double-billed for philanthropic travel and flew his family for free all over the world. About someone whose pen collection is worth an estimated NIS 1.3 million. Perhaps in the court of public opinion, such a leader would be slightly less innocent.
Want to enjoy 'Zen' reading - with no ads and just the article? Subscribe todaySubscribe now