The government vs. the law
All that Justice Minister Daniel Friedmann, as Olmert's long arm, has done to undermine the court's status must not deter the justices from imposing the rule of law on every branch of government.
"An officeholder as such," wrote then-justice Aharon Barak in the High Court of Justice's ruling on the Bus 300 affair in the 1980s, "enjoys no more rights, powers or immunity than does any other person in the country." This truth is one of the foundations of equality before the law. It was formulated in the 19th century by the famed British jurist Albert Venn Dicey, who wrote that anyone in an official position - from the prime minister to the lowly beat cop - is subject to the law just like any other citizen.
Dicey also said that parliament can do anything but make a man into a woman. But in Israel, Prime Minister Ehud Olmert can turn the subject of an investigation into the person conducting it and wage an unprecedented media campaign against the law-enforcement agencies, which was evident at length in the weekend papers. No previous subject of an investigation, including previous prime ministers, has ever dared to wage such a campaign.
The penal code does not give the prime minister immunity from police investigations, nor does it grant him any special rights with regard to the venue, date or duration of an interrogation. Commenting on the difficulties entailed in interrogating Olmert, Attorney General Menachem Mazuz, in response to a petition to the High Court by journalist Yoav Yitzhak, said: "The police are encountering nonnegligible difficulties in coordinating times for interrogation sessions with the prime minister, as well as in determining their duration - difficulties that the police have not encountered in interrogations of other public figures, including previous prime ministers."
The law granting parliamentary immunity to Knesset members makes the interrogation of a prime minister, or of any MK, more difficult by giving him immunity from arrest that only the Knesset can remove. In practice, MKs have never been arrested while under police investigation; their immunity has been lifted only after an attorney general prepared an indictment against them.
Arrests are meant to help prevent investigations from being disrupted. Sometimes, inappropriately, they also serve as an aid to the investigation itself, in the form of a threat should the subject of the probe refuse to cooperate. The prime minister not only enjoys immunity from arrest, he also benefits from having a plethora of aides and media consultants. Therefore, his complaints on this issue resemble those of the "robbed Cossack," and his portrayal of himself as a victim is laughable. Many people under investigation would envy him.
In his briefings to the media (given on days when he had no time for police interrogations), the premier has not hesitated to obstruct the investigation in ways that would have led to an indictment against anyone else - as it did, for example, with former MK Naomi Blumenthal. The things the premier was quoted as saying in the weekend editions of Yedioth Ahronoth, Maariv and Haaretz were not just crude attacks on the law-enforcement agencies. They also revealed the highlights of his version of events to anyone who is interested, including other people involved in the case under investigation.
The attorney general's statement to the High Court about the difficulties of interrogating the prime minister in effect confirms that the premier is acting to obstruct the investigation and the course of justice. But Mazuz, who is far more protective of the prime minister's honor than the prime minister is of his, declined to say that he thinks the court should accept the petition. If he had, the result would have been a binding court order requiring the premier to present himself for interrogation "as requested," just like anyone else.
The court is now faced with a petition on which it is not easy to rule. It is being asked to obligate the prime minister, via the attorney general, to make himself available for interrogation as often, and for as long as, the police wish. The court is also being asked to require the premier to show it his calendar of meetings, so it can determine whether he is indeed incapable of making time for the interrogations. Finally, it is being asked to order the attorney general to declare the premier temporarily incapacitated because of the interrogations that he is having so much trouble finding time for due to affairs of state.
The court will have difficulty granting these requests, in light of its well-known view that it should not be the body conducting police investigations. Its desire to avoid clashing with the prime minister and to refrain from telling the attorney general how to act, due to the respect that the different branches of government are supposed to feel for one another, is also understandable.
Nevertheless, it would be inappropriate for the court to stand aside while a laughingstock is being made of the fundamentals of the rule of law. If the prime minister does not see himself as being bound by the law, there is no reason why ordinary citizens should take the law seriously.
All that Justice Minister Daniel Friedmann, as Olmert's long arm, has done to undermine the court's status must not deter the justices from imposing the rule of law on every branch of government. And that is especially so when the principal symbol of government, the prime minister, is ignoring the law.
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