On April 9, 2019, millions of Israeli citizens will vote in the national legislative elections for the party they wish to represent them in the parliament (the Knesset). Numerous ongoing investigations into corruption allegations against senior officials and various public figures (including Prime Minister Benjamin Netanyahu) ensure that anticorruption will feature prominently on the agendas of most major political parties. One can only hope that the next elected Knesset will manage to pass effective anticorruption legislation. However, one piece of anticorruption legislation that has been repeatedly proposed should not be adopted: a de facto limitation on senior elected officials’ right to silence in criminal interrogations in which the officials are suspects. (The proposed legislation would also de facto limit elected officials’ narrower right of refraining from answering specific questions when doing so may put them at risk of criminal prosecution; for the sake of brevity I will discuss only the broader and more comprehensive right to silence.) Currently, elected officials enjoy the right to silence just like any other suspect in a criminal case in Israel, yet proposals have been repeatedly floated that would require certain high-level elected officials (such as the prime minister, ministers, Knesset members, or mayors) who exercise this right to be removed from office. Most of the bills, which differ from each other in certain respects, would apply to criminal interrogations related to the officials’ duty, but some go even further, with a broader application to any kind of criminal interrogation in which the officials are suspects.
The explicit goals of these bills are strengthening the war on corruption and promoting public trust in the rule of law. So far, none of these bills have been enacted, but Knesset members from across the political spectrum have been flirting with this idea for the last few decades, almost always in response to occasions in which Israeli officials (whose political views typically diverge from those of the proposing Knesset members) chose not to cooperate with the interrogators in corruption investigations. It is very likely that something like this will be proposed again in the next elected Knesset, as some parties have already declared in their official platform that they intend to promote such legislation.
While I agree that an elected official’s refusal to answer interrogators’ questions inspires a great deal of unease, adoption of the aforementioned bills would be unjustified and even dangerous. Although the proposed bills do not technically eliminate elected officials’ right to silence, requiring a public official to give up his or her position as a condition for exercising this right is a sufficiently severe sanction that the bills unquestionably impose a severe practical limitation on this right. If Israel were to adopt such a rule, it would be a significant outlier among peer nations: Research conducted by the Knesset’s Research and Information Center in 2007 found no equivalent limitation on elected officials’ right to silence in numerous legal systems around the world. Taking such a step would therefore be unprecedented, but more importantly, it would be unwise, for several reasons:
- First, regardless of one’s general views concerning the justifiability of the right to silence, once the law affords this basic right to suspects interrogated by the police, every suspect – including elected officials – should have an equal opportunity to exercise that right. Admittedly, elected officials’ immense public responsibilities may justify certain limitations on some freedoms that ordinary people enjoy. (It is reasonable, for example, to forbid Knesset members from holding any additional paid occupation or serving as elected representatives in other public bodies.) However, curtailing one of the most fundamental protections for criminal suspects is untenable, even when the suspects are elected officials, given that in the context of a criminal investigation the state is at its strongest and the individual at its weakest. Moreover, because investigations against elected officials are often subject to accusations of political bias, it is especially important that the public can be confident that the suspects have the same procedural rights as every other person.
- Second, even if one believes there are compelling enough reasons to limit elected officials’ right to silence, it is important to remember that there are actually very few cases in which public officials invoke this right. This is likely because elected officials who choose to remain silent in their police interrogations are viewed negatively by the public and the media, which may have negative consequences on their future political careers. In 2002, for example, then-Prime Minister Ariel Sharon fired a deputy minister who invoked her right to silence in an interrogation, and in 2015, another deputy minister announced her retirement from political life following her decision not to answer police questions. In addition, according to Israeli law, a suspect’s decision to refrain from answering interrogators’ questions may strengthen the evidence against her. These considerations mean that the law enforcement benefit that would be derived from coercing more officials to waive their right to silence is likely to be very small. Of course, one could argue that this means the direct harm caused by such a curtailment of the right to silence may also be small. But such an argument overlooks the fact that adopting any limitation on elected officials’ criminal procedure rights could pave the way for further limitations on their basic rights, and moreover that chipping away at the right to silence for one class of defendants might eventually lead to limitations on the ability of every suspect to exercise that right.
- Third, coercing public officials to answer investigators’ questions does not necessarily mean that their answers will be honest. Many public officials who would otherwise invoke their right to silence – and the cloud of suspicion that may entail – might otherwise simply lie, even at the risk of being charged for this choice. If so, then the ability to reach the truth may actually be hindered.
The fact that none of these bills have so far been enacted into law is encouraging. But in a world in which the field of corruption and anticorruption often suffers from populism and the thirst for quick fixes, one can never be too sure that such proposals will not be passed in the future. To be sure, Israel needs to do more to combat corruption, and this may entail some legal reforms. But there is no compelling reason why Israel should make the unprecedented move of de facto limiting elected officials’ right to silence.