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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.
Translated by Hillel Fendel
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