Benjamin Netanyahu’s lawyers are calling on Attorney General Avichai Mendelblit to open a criminal investigation into leaks from detectives’ interviews with the prime minister. The demand comes from Netanyahu himself, through his representatives.
Israeli criminal law contains numerous anachronistic prohibitions relating to the disclosure of official information. Most of these are relics from the British Mandate. Others, enacted in the two decades after the state’s establishment in 1948, may have suited a young state facing a genuine existential danger but are inappropriate for a mature democratic country in the 21st century.
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A clear example is Article Five, Section 117 of the criminal code, passed in 1957, which bars a public servant from unlawfully delivering information by virtue of his office to someone not competent to receive it. Conviction carries a three-year prison term. At the time, the Supreme Court ruled it justified to protect the property rights of the state, as an employer, to information in its possession.
Clearly such an approach is not consistent with the current view that the state has possession of such information in trust on behalf of the public, which is its real owner. Therefore it is the public interest that needs to dictate what is appropriate to be kept confidential and what should be made public.
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The principles of transparency and freedom of information need to be reflected in any proper system relating to information in the hands of government authorities. The ban contained in the law is too sweeping and applies not only to what is in the public’s interest to keep confidential, including state secrets and economic secrets, but also to matters in which the public’s interest is precisely the opposite: information regarding government corruption (including violations of norms of proper management and integrity) or regarding safety or health hazards, which should be made public.
As a result, the prohibition does disproportionate harm to the right of public servants to freedom of expression, freedom of the press and the public’s right to access to information that relates to government conduct. Even in Britain, which provided the inspiration for the prohibition in Israel, the law was amended in 1989 and such a sweeping ban no longer applies there.
Those objecting to disclosures from the investigations of Netanyahu describe their aim as an effort to combat a lie, but one is more likely to get the opposite impression — that it is not a lie that they fear, but rather the embarrassing truth. It’s precisely the same when it comes to reporting on the conclusions reached in the three investigations by Mendelblit, pending a hearing. When opponents of the leaks seek to have those leaking the information indicted for disclosing the information, it’s not in service of the truth but to hide it from public view.
If they have substantive complaints about inaccuracies in what is being reported, they are welcome to present the information to a judge — and to the public. That is the only proper approach in a democracy. If, as has been reported by Channel 12 News, the prime minister really did have a plan — and even took steps to carry it out — to damage then-Habayit Hayehudi leader Naftali Bennett just before the 2013 election, the public has the right to know. It has the right to know, as the report alleges, that the plan sought to smear Bennett’s father via reporting on the Walla news website.
The public has the right to know so that it can properly evaluate the loathsomeness of the conspirators, who preach to others that politicians’ families are off-limits. The same for Bennett, who still sees them as political partners, as if the desire to win justifies any means, however despicable.
The next Knesset must amend Section 117. Until then, it’s worth knowing that not everyone who champions enforcement of the law, most notably the prime minister himself, is a genuine advocate of the rule of law. Tell us what laws you want to enforce and we’ll know who you are and what your values are.