When ethics are not enough

The verdict in the Sheves affair is indeed a landmark, but there are so many interpretations that it's hard to see in what way. Clearly it sets a new rule. But what is it? It can and should be stated in words that everyone can understand.

There are two kinds of government corruption. The first consists of severe, "hard" corruption - mainly the taking of bribes and stealing from public funds. These are grave offenses, but they don't endanger society. The public denounces such offenses unreservedly; the police, State Prosecution Office and the courts treat them extremely harshly; and anyone convicted of them is eligible for imprisonment, social ostracism and the termination of his public career. Therefore, such offenses are apparently not more prevalent in Israel than in certain countries considered states of law, even in Europe.

The second kind includes mainly acts of government favoritism. A public official may use his position to give illicit benefits to a crony, for example, a building permit or license to import foreign workers, a financial grant to build a plant, allocating or rezoning land, or giving a crony preference in a public tender. On the face of it this is an innocent act. Is it wrong to do a favor for an old army buddy or party colleague? The answer is: Yes, it is indeed wrong. First because you are not granting a favor at your own expense, but at the public's. This is not the purpose for which you landed this job. Second, often what appears to be just a favor is nothing other than a dirty deal. A political appointment, for example, is usually a deal of give and take. Morally speaking it resembles bribery, and therefore it is a kind of corruption. Granted, soft corruption, but corruption of a kind that endangers society.

First, because the public takes a lenient view of it. What politician does not act this way, and anyway, what did he do after all? In any case, such an act would not damage the perpetrator's public career or reputation. Have you ever seen a politician who was harmed by making political appointments? At worst, if his deed is discovered, the State Comptroller will say something in some report and a few newspapers will write about it on an inside page. After a week they will forget. On the whole, it pays. This is why this kind of corruption is so widespread in Israel. And it is an epidemic; the atmosphere around the government is becoming murkier and murkier. The public's trust in its rulers is being chipped away. Israel is deteriorating in the international corruption index from year to year. People are saying: Corrupt officials, we are sick of you. But what can they do to stop the deterioration?

The book of laws lists an offense intended to fight the soft corruption: breach of trust. However, for years the court had difficulty defining this offense and penalizing it. Consequently it acquitted quite a few public figures, although it was clear that they were guilty of improper conduct. The court said: This is a breach of ethics, but not a criminal offense. The court appeared helpless in view of this sort of corruption.

Now the Supreme Court, in the Sheves case, defined the offense of breach of trust in a way that can serve as an effective weapon against soft corruption. The basic assumption is that every public and elected official receives his position from the public. Therefore it is incumbent upon him to be loyal to the public. It is his duty to use his post for the public good. If he uses it to benefit his crony, it is a breach of trust. In severe cases, it could be a criminal offense of breach of trust.

What, then, must a public official do to avoid the offense? The rule of thumb is that if he deals with a matter that could benefit someone close to him, and there is a real danger that the closeness would influence his decision, he must transfer the matter to someone else's hands or to the attorney general, to let him decide who should handle it.

This prohibition is not new. But it failed to attach personal risk to those who violated it. At most, the court would cancel the move or decision. This is the innovation of the ruling in the Sheves affair. There is a personal price to government favoritism. It could be a criminal offense. The offender is eligible to be sent to prison. Political appointments, for example, are no longer an all-profit business.

The verdict takes one more step on the way from ethics to law. Behavior that so far was considered improper only from the ethical point of view is becoming legally forbidden as well. In some states there is no need for a legal prohibition to prevent such conduct, but Israel is not one of them yet. When the culture is not enough, the law must provide protection. For example, some time ago it transpired that the practice of giving gifts to public officials was becoming widespread. First it was gift baskets for the holidays, then it became checks, as well. Directives and warnings had no effect. Finally the Knesset had to enact a law making it a crime for public officials to receive gifts. Ethics had become the law. This is the case here as well. The court enlisted criminal law, almost for lack of choice, in its fight against the corruption prevalent in government.

Is the verdict enough to stop the spreading corruption? Perhaps. It depends on whether the police and State Prosecution make proper use of it.