Is Maintaining Personal Security Not a Sufficiently Important Public Interest?

An interview with Attorney Gil Shapiro

The Public Defender's Office was among the first to come out vehemently yesterday against a law proposed by the government that would authorize police to conduct body searches on any individual, even if that individual is not suspected of any crime.

shapiro Tali Mayer - August 31 2010
Tali Mayer

The law would also grant various powers to security guards and certified municipal inspectors, including the authority to use force.

Written under the direction of Attorney General Yehuda Weinstein, the proposed law is aimed at preventing stabbings at entertainment venues, a trend which has been on the rise in Israel.

Gil Shapira, an attorney and senior deputy at the national Public Defender's Office, has dealt in recent years with issues connected to the preservation of privacy and, among other things, has taken an active part in the parliamentary investigative committee on wiretapping.

Is maintaining personal security not a sufficiently important public interest?

Maintaining personal security is definitely an important interest, but it doesn't necessarily justify extreme and hurtful measures such as this - certainly not without a prior and thorough discussion of the need, the implications and the possible alternatives that are less damaging.

What about this proposal disturbs you?

The first problem is that this proposed law exempts the police from the basic condition for infringing on any individual's right, and which has been in effect in Israel to this day - and that is the existence of reasonable suspicion that an individual has been involved in committing a criminal act or an act harmful to public order.

Nearly everywhere, it will be possible to violate an individual's freedom, privacy and public dignity without that individual having been at all involved in any act of criminality. In this sense, this proposed law robs us of the most basic element of democracy. Additionally, the proposal provides inspectors who have not had any policing or supervisory training with far-reaching powers, especially with regard to municipal elements with their own political interests.

What is the danger in this?

Imagine, for example, where the inspectors who serve under the head of a local authority might be sent; is it possible, for example, that they'll be sent to a political assembly comprised of elements opposed to the head of the local authority, where they will perform searches on participants? Is there an easier way to intimidate the public, when inspectors can suddenly perform searches on [anyone they want]? And those same inspectors are not subject to disciplinary proceedings within the police organization or outside the police organization, such as the unit for investigating police.

Do you see this proposed law as part of a trend on the part of the law enforcement authorities, which ultimately damages human rights in Israel?

Definitely. We are regrettably witnessing an increasing trend, which is seeing the erosion of basic human rights in the guise of combating rising crime. This is the case, for example, in the area of wiretapping, whereby the chances of an Israeli citizen being subjected to wiretapping are 30 times greater than the chances for an American citizen. This is the case in legislation like the "big brother law" and this is also the case in the very broad interpretation of the law by the police in various places, especially in Jerusalem, when members of the police force take upon themselves the liberty to detain civilians and perform body searches in city streets without any basis for suspecting those civilians of anything. This is something they're doing even before the law has been passed.

Perhaps these dramatic steps are unavoidable to decrease the incidences of violence?

According to police data, there has been a steady decline in the crime rate in recent years. These are things that were said by the head of the Investigations and Intelligence Division of the Israel Police, Maj. Gen. Yoav Segalovich, just a few weeks ago in the Knesset Constitution, Law and Justice Committee. Certainly relative to what prevails in the Western world, we are in a reasonable position and there is no basis for the incendiary public discourse which is giving rise to proposed laws of this sort.

So it isn't clear why they are promoting such far-reaching legislation without there being a genuine need for it, in the reality.

What proportionate alternatives do you propose adopting?

The guard at the entrance to a shopping mall, for example, conducts a search at the entrance, so why do you need to go through another search once you're inside? I propose that police increase their presence in public places prone to violence, as presence has been found to be a deterrent force.

It must be understood that the vast majority of Israel's citizens aren't walking around in the streets with knives in their pockets. In order to find a few such criminals, they intend to go ahead and violate a priori millions of people's rights to privacy, dignity and liberty, and this must be taken into consideration.

Is there a danger this proposed law may invade other arenas?

Without a doubt. Today we are exempting police from the need for reasonable suspicion to perform a search. Maybe in the future someone will decide to dispense with a reasonable system by which they can arrest an individual for a crime, and then they will diminish a suspect's right to consult a lawyer, and ease the criteria for performing wiretaps. This is just a matter of time.

This is a bleak picture.

The slope is slippery. This is a proposal for a law that is not directed at criminals, but rather at the public as a whole. They are making 7.5 million people subject to the caprices of every policeman who decides to perform a search in a public place.

There is a default option in a democratic regime, whereby we don't violate an individual's rights unless we have good reason and a minimal basis for doing so. This proposed law reverses the default option and negates the need for the minimal basis - and this is what's problematic.

Still, maybe the public is indifferent to proposals of this sort.

The public doesn't understand what a proposal like this and others similar to it say. This is something that will create a great many conflicts. Everyone should imagining going out for a meal at a restaurant with your wife or girlfriend, and a policeman won't need to justify why he wants do a search through your pockets. An innocent person who encounters arbitrary behavior like this can easily be dragged into an unnecessary conflict with the authorities.

Therefore I think the proposal will not contribute to a sense of safety and security, but will rather damage the public's trust. Everyone will feel persecuted and hurt without having done anything wrong, and rightly so.

Let's talk about how the amendment to the law has been entered - by means of the Economic Arrangements Bill.

This is another element that is infuriating. Why hasn't the proposal been entered as a regular government law proposal, which comes up for discussion in the Knesset Constitution, Law and Justice Committee? It does, after all, relate to significant issues concerning the violation of human rights. The public has been denied any real discussion on this matter, and precisely in a case involving an intention to change the way of the world and harm fundamental rights.