The administration of Justice stands indicted

President Katsav in the Dock: a putsch in disguise?

The Israeli media and various Knesset members clamored for the removal of President Moshe Katsav because he stands accused by the criminal justice system of raping several of the employees of his office. Now, women’s groups and the Movement for Quality Government are asking the court to refuse the plea bargain in the case. In a normal democracy, under usual circumstances, that would be matter of course. In Israel, under existing circumstances, it is deeply troubling.

In every criminal case, the criminal justice system has to establish two things, not just one. Of course, it has to establish the guilt of the accused. Frequently forgotten, however, but of fundamental importance, it must also demonstrate its own innocence. It would be of small comfort to be reassured that the criminal justice system of Zimbabwe or Libya or Iran or any “People’s Republic” had found someone guilty as charged. No reasonable person has any faith in the innocence of those systems nor, therefore, in the credibility of their findings.

In Israel, demonstrable prejudice, bad faith and abuse of power on the part of the criminal justice system have been too frequent to act as if this were a normal democracy. Some specific cases come to mind:

    Rafael Eitan, appointed the serve as Police Minister, relinquished his appointment when the State Prosecutor instituted an indictment against him. Likewise Ya’akov Neeman when he was appointed to be Justice Minister. Haim Ramon was brought under public scrutiny about his personal conduct upon his considering opening the hearings to the public and not appointing Dorit Beinish as President of the Supreme Court. The list could go on to great length.

The Attorney General and the State Prosecutor have arrogated to themselves the power to veto appointments to the cabinet and to control decisions and policy or force the resignation of sitting officials by means of criminal investigations, frivolous indictments and character assassination. Clearly, this is abuse of power.

Use by the police of agents provocateurs, a tool of totalitarianism, is clearly an abuse of power and would constitute “entrapment” in the United States which is a complete defense. In fact, in Israel, the criminal justice system has been used as one gigantic agent provocateur to demonize entire segments of the population for political purposes. There is no shortage of examples.

The “New Jewish Underground” involving the high profile arrests of about fifteen suspects, collapsed for lack of substance. It collapsed, quietly, of course, when the judge refused to extend the remand into custody of Oren Edri, the young IDF officer touted as the kingpin. Edri proclaimed his innocence and accused the police of appallingly mistreating him for no reason. The judge ordered the government to show cause why Edri should ever have been arrested in the first place. The government never did so. One judge behaving true to his calling exposed the whole episode as a Stalinesque show trial from the beginning, brought for political reasons.

The Shabak “Jewish Section” used agents provocateurs such as Avishai Raviv, the agent who created the widely publicized “terrorist organization” Eyal and who recruited and operated Yigal Amir. The Attorney General and State Prosecutor at the time, in order to deflect the investigation away from Raviv, instigated a prosecution of a man they knew to be innocent. They sit today on the Supreme Court, one being President of the Court. Does the system look innocent?

The courts have imprisoned 14 year old girls pending trial, which is illegal, and then berated the father of one of the girls for not accepting “the sanctity of the law.” The girls, by the way, were finally convicted of insulting a public servant. But insult to public servants is absolutely the stuff of demonstrations of such groups as Women in Black, Machsom Watch, Yesh Gevul, who are never prosecuted for it. In their case, it is regarded merely as free speech. Selective enforcement of law is antithetical to rule of law. Is the system innocent?

In August 2005, nine thousand Israelis were expelled from their homes, lands, businesses, farms and towns. Their property was confiscated and they themselves beaten up, exiled and turned into helpless refugees. The Supreme Court admitted that it was a violation of their human rights but ruled that state policy could override human rights, a doctrine Hitler could have happily embraced.

All the foregoing is well documented. In light of this ever-so politicized a criminal justice system, by what reason can it be demanded that Katsav’s plea bargain be overturned after he resigned pursuant to it? After months of silence, Katsav responded to the accusations against him by accusing the Attorney General and the State Prosecutor of pursuing a prejudicial agenda to take him down. He accused the criminal justice system of abuse of power. Abuse of power is the antithesis of the democratic process. If anyone should resign, it should be the Attorney General and the State Prosecutor. Katsav has done the country a service by raising the issue.

Given that the issue is a politicized criminal justice system, is it without significance that not one of the women claiming rape came forward until just after the President delivered a biting criticism of unilateral surrender of territory? Is it not significant that not one of the women who suddenly remembered that Katsav had raped them, had complained to the police? Or to the union? Or to Katsav’s wife? Is it not significant that not one of them quit her job? They all returned to work for the man who they say raped them.

Amnon Rubenstein has called for an investigation of the State Attorney’s Office and the police which he said could not be conducted by any existing branch of the law-enforcement system, including the Police Investigations Department in the Justice Ministry. “We need a special prosecutor, as in the United States. When you can’t trust the system, you have to bring someone in from the outside.” Those are Rubenstein’s words.

Rubinstein recommends the “establishment of a committee of legal experts to reexamine the entire judicial system.” He finds “an attorney-general who is [also] the prosecutor-general, the legal adviser to the government, oversees the State Attorney’s Office and gives instructions to the police” to be unacceptable. Rubenstein even called for a legal expert from abroad to oversee the committee. “The government is frightened of the State Attorney’s Office, and even of its own shadow,” he said.

The Knesset should heed Amnon Rubenstien’s sage advice and appoint a special prosecutor with broad powers to investigate the police, prosecutors and judiciary, including the Supreme Court, and empower this prosecutor take over the case against Moshe Katzav. Until both investigations are complete, removing the President was simply wrong. Disapproving the plea bargain now would make it look like a putsch from the beginning. The system does not look innocent.

Prof. Ya’akov Peretz Golbert, Advocate and Attorney



The foregoing is an original piece written by the signatory. It has never been published. The writer, a former law professor in Los Angeles, practices law in Jerusalem. He is one of the founders of the HASHKEM EMERGENCY LAW PROJECT (H.E.L.P.)

Permanent mailing address: P.O. Box 28005, Jerusalem 91280

Tel: 050-7428100

July 17, 2007 | 14 Comments »

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