When Ethics Are Hard to Swallow

The cabinet is planning to kill the proposed code of ethics drafted by a committee headed by former Supreme Court President Shamgar.

In Britain, the prime minister and other cabinet members customarily exchange their government cars for vehicles owned by their political parties when they travel for purposes unconnected with their public office. Furthermore, a minister who sends his government driver on personal errands may well find himself out of a job.

Israel is not Britain, and British traditions will never convince those of our ministers who regularly send their drivers, both here and abroad, on errands that the public silence that usually greets them is not proper. Given this, it is no wonder that the cabinet is planning a "targeted assassination" of the code of ethics drafted by a public committee headed by former Supreme Court President Meir Shamgar, and whose other members included Prof. Asa Kasher, an expert on ethics, and Prof. Gabriela Shalev.

ethics - Tomer Appelbaum - December 27 2010
Tomer Appelbaum

For two years, the committee labored to produce a draft of an ethical code that was then laid, like a ticking bomb, on the cabinet's doorstep. Some ministers promptly voiced doubts - though usually not for attribution - about the high bar the committee set for those who deal with very serious issues. In October 2009, about a year and a half after the panel submitted its report, Prime Minister Benjamin Netanyahu ordered the establishment of a ministerial committee, headed by Justice Minister Yaakov Neeman, to look into implementing the Shamgar rules.

One particularly rotten fruit of the ministerial panel's work was its decision to exempt its chairman, Neeman, of any personal obligation to follow these rules - due to the fact that he is not a Knesset member. This stance, which contradicts the Shamgar recommendations, clearly mixes apples and oranges. It is possible under the law to have a minister who isn't an MK, but he is still bound by all the obligations stemming from his lofty post as a minister. Back in 2003, when the cabinet reaffirmed the Asher committee's rules for ministerial ethics - which forbid ministers to be involved in any issue in which they have a conflict of interest - no one even dreamed of exempting a minister who wasn't an MK from those rules.

Neeman's ministerial committee also rejected the Shamgar panel's proposed ban on ministers using state resources for either party or electoral purposes. In addition, it rejected the public committee's proposal to require ministers to make certain that key issues within their areas of responsibility are brought to their attention. Perhaps the ministers are not aware that this recommendation stems from the reports of several state commissions of inquiry, including the Bejski and Or commissions, which held ministers responsible for failing to deal personally with issues of public or of strategic importance to the state.

The ministerial panel is still debating over whether to approve the Shamgar report's proposal that ministers resign if indicted for a serious criminal offense. Current law does not oblige someone in that position to resign in such a case, nor does it require the prime minister to fire him or her.

Though the Knesset refused to enact such a rule through legislation, repeated Supreme Court rulings have entrenched the principle that the prime minister must fire a minister or deputy minister who has been indicted. The first of these rulings were issued in 1993, in the cases of minister Aryeh Deri and deputy minister Raphael Pinchasi. Since then, this principle has been the reason for the resignations of other ministers under indictment, including Yitzhak Mordechai, Abraham Hirchson, Shlomo Benizri and Neeman himself - though the latter was subsequently acquitted by the court.

The idea that a minister under indictment must resign has thus become a deeply rooted ethical principle reinforced by subsequent legal rulings, and it will presumably lead Foreign Minister Avigdor Lieberman to resign if he is indicted. Nevertheless, there are some who object to a regulation whose only legal underpinning is a Supreme Court ruling.

If the cabinet were to adopt a code of ethics that did not include the obligation to resign if indicted, in defiance of the Shamgar report's recommendation, this could undermine the status of a rule that has become an important element of Israel's public ethics.

The Shamgar panel's rules are not holy writ, but they do deserve serious and respectful consideration - among other things, because ministers ought to recognize that stringent adherence to rules of public ethics is a good way to keep themselves clear of criminal entanglements. Only a very fine line separates ethical violations from the kind of acts that result in ministers standing trial on charges of breach of trust.