Without prejudice

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Acting Attorney General and State Attorney Edna Arbel has had a busy week. On Sunday, she let it be known that she will find it difficult to defend the government's decision to build the security fence on land located in the disputed territories.


On Wednesday, she let it be known to Channel 2 that she supports indicting Prime Minister Ariel Sharon on charges of accepting bribes from businessman David Appel.


These statements by the nation's top law-enforcement officer are shocking and stunning. On the issue of the security fence, since 1967, the view of every Israeli government has been that the status of Judea, Samaria and Gaza is disputed. Israel has never accepted the legal view that these territories are "occupied." Indeed, former attorney-general Elyakim Rubinstein felt the need to remind prime ministers Ehud Barak and Sharon that UN Security Council Resolution 242 from 1967 does not speak of an Israeli need to unload all of the territories it conquered in the Six Day War. Rather it speaks of the eventual transfer of control over some of the territories to the Arabs in the framework of peace treaties between Israel and our neighbors. Rubinstein also reminded our elected leaders that Israel does not view these territories as "occupied" but rather as "disputed" – that is, that Israel has a legitimate claim to sovereignty over these lands.


Even if Israel had renounced its claim to the territories, which it has not, it would still be wrong to interpret international law as saying that Israel cannot take necessary measures in territories it occupies to protect its civilians and military personnel from attack by enemy forces. Building a fence to prevent terrorist attacks against Israeli civilians and military personnel in occupied territories is permissible in times of a belligerent occupation according to the Fourth Geneva Convention from 1949.


And yet, in spite of this, Edna Arbel says that she will find it difficult to defend the state in the forthcoming debate on the fence in the High Court of Justice. One can only infer from Arbel's quandary that she has adopted the Palestinian misinterpretation of international law. This misinterpretation argues, with no legal basis, that Israel not only has no right to the disputed territories but that indeed, Israeli citizens have no right to live in these areas or even to be protected from attacks emanating from these areas.


If as her remarks would indicate, Arbel has in fact adopted this anti-Israel and legally unjustifiable view, then she should be fired immediately on the grounds of incompetence. There can be no professional justification of her statements or actions in the context of her position as an unelected civil servant charged with defending the legal rights and prerogatives of the government of Israel.


Arbel's comfort level with using spurious legal arguments to force what can only be considered her personal political views on the elected government is the result of a troubling phenomenon that has plagued Israel for the past 20-odd years. This phenomenon, the catapulting of the unelected and largely self-selected state legal authorities and judiciary to the position of policymakers is one of the most troubling weaknesses of Israeli democracy.


We have seen repeated examples of the preference of our High Court of Justice and our legal elites in the State Attorney's Office to widen their power to enforce their own narrowly held views on our elected leadership and indeed on the population as a whole. Supreme Court President Aharon Barak's view of the judiciary as somehow more "enlightened" than the rest of us has informed his judgment on issue after issue.


In March 2000, for instance, Barak presided over the court ruling that the Jewish Agency has no right to set up towns in Israel for Jewish settlement. The Katzir decision has been roundly criticized by some of the most respected jurists in Israel for undermining the very foundation of Zionism – that is the establishment of a Jewish state for the Jewish people in the Land of Israel.


Last November, the court under Barak issued an interim order prohibiting the government from enforcing the Knesset's amendment to the Citizenship Law. The Knesset's amendment, passed last June, prevents the automatic conferral of citizenship to Palestinians on the basis of marriage to Israeli Arab citizens. The cause for the amendment was the Knesset's view that the law providing such citizenship was being used as a back door for forcing the so-called "right of return" of Arabs to Israel with the aim of upsetting the demographic balance of the state. The Knesset also worried that the abuse of the law was enabling terrorist elements to infiltrate into Israel for the purpose of conducting terrorist attacks against Israeli citizens.


As with his decision on housing rights, Barak's decision to prevent the enforcement of the Citizenship Law places his court in the position of the arbiter of norms and of policies in the place of the elected leadership of the country.

Most recently, the Supreme Court has decided to weigh in on the Knesset's prerogative to pass the Budget Law. At the beginning of the month, the court gave itself the authority to determine whether the Knesset's welfare cuts in the 2004 budget impinge on citizens' rights to "dignified human existence." As with its body of past decisions, the court's determination that its unelected justices are better qualified than the people's representatives in the Knesset to determine what tax-financed welfare levels should be is an egregious usurpation of power from the Knesset. To put it more bluntly, it is yet another instance of the court undermining the democratic character of the state.


For her part, Edna Arbel has used her position as state attorney to subvert the authority of the elected representatives of the people by indicting and promiscuously investigating our leaders. Since assuming the office of state attorney seven years ago, Arbel has indicted six sitting and former cabinet ministers on various charges. In all but one case (that of former Shas leader Aryeh Deri), the ministers in question – Ehud Olmert, Tzahi Hanegbi, Rafael Eitan, Avigdor Kahalani and Yaakov Neeman – have been found innocent of all charges.


In 1997, it was Arbel, in her first stint as acting attorney-general, who decided to launch a loud criminal investigation into the government's appointment of Roni Bar-On as attorney-general.

The investigation, which undermined the legitimacy of our elected government, failed to produce any indictments.



In 2000, it was Arbel again who led the charge to indict by then former prime minister Binyamin Netanyahu of accepting illegal gifts. She held this view in spite of the fact that the prosecutors in charge of the investigation claimed that there was no concrete evidence that Netanyahu had broken any law.


Arbel has also stood behind several investigations of Transportation Minister Avigdor Lieberman that seem to have been carried out in breach of democratic norms. So it was that in one investigation, police wiretapped and transcribed telephone conversations between Lieberman and then prime minister Netanyahu on issues unrelated to the suspicions of wrongdoing for which he was being investigated.


While it could be argued that Arbel is simply executing her duty of upholding the law by conducting no holds barred investigations of officials, the fact of the matter is that this defense falls apart when one compares her aggressive investigation of politicians identified with Israel's right wing, with her halting and sympathetic investigations of officials identified with the left wing of Israeli politics.


So it is, for instance that no one has been indicted in the allegedly illegal fund-raising schemes that financed Ehud Barak's c
ampaign for prime minister in 1999.This is spite of State Comptroller Eliezer Goldberg's scathing report on this fund-raising that led to the levying of NIS 13.8 million fines on Barak's One Israel Party for campaign funding abuse. Indeed, the decision taken jointly late last year by Edna Arbel and Elyakim Rubinstein not to indict the recently deceased Yossi Ginossar for egregious misconduct smacks of a similar bias.


The two claimed lack of evidence as a reason for closing the case against Ginossar who was alleged to have not reported his multi-million dollar financial dealings with the Palestinian Authority while he was acting as the representative of prime ministers Rabin, Peres and Barak to PA chief Yasser Arafat. And yet, an investigative report by Ma'ariv newspaper based on the testimony of Ginossar's business partner Ozrad Lev, may have been enough to indict him. If the state prosecutor had asked the police to simply interview officials who had worked with Ginossar in his capacity as envoy to Arafat, they would have easily received enough evidence to substantiate an indictment.

An indictment of Prime Minister Ariel Sharon on bribery charges will, because of High Court precedent, create an irrepressible groundswell of pressure for Sharon's resignation that he will be hard pressed to ignore. And so, by claiming that she favors the indictment of Sharon, Arbel is in effect stating that she favors the ousting of our top elected official from office.


The bribery charges now hovering over the prime minister are extremely serious. If Sharon did in fact accept bribes from David Appel then he should rightly be considered unfit to lead the country in spite of his overwhelming popularity at the polls. And yet, it is not at all clear that Arbel is competent to oversee his investigation.


Her statement on the legality of the security fence places her on the fringes of the political left in this country. Her history of unsubstantiated indictments and irresponsible investigations of right wing politicians on the one hand and ineffectual, almost apologetic investigations of left-wing politicians on the other hand show that she cannot be trusted to enforce the laws without prejudice.


Originally published in The Jerusalem Post.

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