by Rav Uri Sadan, Fellow at Mishpetei Eretz Jewish Law Institute, yeshiva.org.il, translated by Hillel Fendel.
Some two months ago, a German newspaper
published what had been a secret Hamas document that was found in Gaza and
confiscated by the IDF. The document spelled out the Hamas strategy of dragging
out the hostage-release negotiations with Israel, blaming the government of
Israel for the delay, and exerting psychological pressure on the hostages'
families - thus creating a crescendo of public pressure upon the government.
(Translator's note: The weekly protestors on Kaplan Blvd. in Tel Aviv never
seemed to realize that they being used as puppets of Hamas.)
The question immediately arose: Who in
Israel leaked this document? The investigation quickly turned up a spokesman
for the Prime Minister named Eli Feldstein, and a young non-commissioned IDF
officer in the reserves named Ari Rosenfeld. The two were arrested by the
Shabak and imprisoned under difficult conditions for a long period of time; Rosenfeld
is still in prison, despite an official Shabak position in favor of
releasing him.
While a request for a pardon is on President
Herzog's desk, and other efforts are underway for his release, the burning
question has arisen: On the one hand, leaks from within the IDF, police,
prosecution and even the Cabinet are a serious problem that must be dealt with
severely. On the other hand, the fact is that they are not – and the only
reason that this case was treated so heavy-handedly is because the leak
supported the right-wing position, arousing left-wing elements to take action.
The first side, in turn, then claims that the fact that other leaks are not
dealt with properly does not detract from the gravity of this particular leak
and the need to deal with its criminal aspects.
Who is right? Let us examine what the
Halakhah (Jewish Law) has to say on the topic of selective law enforcement.
An
important principle in public law is the Rule of Law, which means, inter alia,
that because the government is not above the law, it must apply its laws to
everyone equally. Maimonides formulates it in this way (Laws of Robbery 5,14):
"Every law that the king institutes for all, and not
merely for one person – [if it enriches the king's coffers,] this is not robbery.
But if he seizes property from one person alone not in accordance with a known
law, but rather arbitrarily, it is considered to be robbery."
Equality before the law is a basic premise
of law, and if this criterion is not met, the law is invalid according to
Halakhah.
The above is not directly related to the
problem of selective enforcement. This is because when the law is uniform and
known to all, it is valid; if it is then enforced problematically, that raises a
separate issue. In such a case, we must differentiate between selective
enforcement and partial enforcement. The latter case occurs when the government
does not have sufficient resources to enforce the law universally, and so it
does the best it can. This is not Halakhically problematic, as there is one law
for all and the criteria for its enforcement are uniform for all. Selective
enforcement, on the other hand, is based intrinsically on discrimination for
arbitrary or immaterial reasons.
The Gemara deals with this question in
Tractate Nedarim (27b-28a). The Mishna permits one to lie to a tax-collector
and thus avoid paying full taxes – and the Gemara limits this to a
tax-collector who "has no framework," i.e., decides arbitrarily how
much each citizen must pay. Thus, though his authority stems from the legal
government, the means he uses are not guided by clear criteria, and therefore
are not valid or legal. After all, even the king himself may not collect taxes
in such a manner!
When may the king cause harm to one specific
citizen? The Rambam states that this is permitted only for security matters,
when there is no way to achieve the necessary result without harming this
specific person, and when the king can justify his actions – and even then, the
king must compensate the person for his loss.
The Rambam's source for these restrictions
is apparently the Biblical story of King Ahab's confiscation of Navot's
vineyard. In addition to the ethical difficulties that cry out from both the story's
verses and from the throat of the Prophet Eliyahu, the Rambam apparently holds
that what the king did was Halakhically problematic as well – because he used
his authority to seize property to do so from only one specific person, based
on personal and non-equal considerations. This rendered the king nothing more
than a robber.
It
is of interest to note that as opposed to the Torah position on this matter,
the Supreme Court in Israel did not, in the past, see a problem with selective
enforcement (*). In recent years, however, it has come closer to the Torah's
position, tending to disqualify selective enforcement that is based on
discrimination (*). The law itself has also undergone certain changes: In 2004,
the Criminal Code (clause 149) was changed to instruct courts to acquit, or at
least sentence more leniently, one who was convicted based on selective
enforcement (*).
Unfortunately,
when we compare how the police and courts related in moderation to the
[left-wing] protests and disturbances of the past two years to how they related
much more strictly to similar right-wing events protesting the Oslo Agreements
and the expulsion of Jews from Gush Katif, it appears that there has been a
retreat from the anti-selective enforcement stance. This can be seen as well
regarding the investigations into leaks, with which we began.
As
such, those responsible for these bodies [the police and the courts] are called
upon to return to the principles of justice and integrity of the Torah, and
enforce the country's laws upon all citizens in an equal manner, without regard
to their political outlooks or their views of controversial topics.
(*) Legal sources are provided in the original Hebrew article.
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