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.
I remember we discussed this, but I don’t remember the outcome – wouldn’t such a law be unconstitutional (on top of being generally not a great idea for the reasons you mention here)?
Hi Ruta, that is a fair question for which there’s no definitive answer. In short, even if such a law is challenged as unconstitutional and the Supreme Court of Israel does find that it violates any constitutional rights protected by Israel’s Basic Law: Human Dignity and Liberty, the law would still be constitutional if the Court decides that it is “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” (https://www.knesset.gov.il/laws/special/eng/basic3_eng.htm. Also see: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village.)
Your arguments against such bills are sound. But why do these law come up time after time? Were there memorable cases that the right of silence was indeed exercised by an elected official and by doing so he managed to avoid indictment (at least in the public opinion)?
Thank you Guy for your comment and for your interesting question. As I mentioned in the post, “[t]he explicit goals of these bills are strengthening the war on corruption and promoting public trust in the rule of law.” There is no meaningful further explanation in the bills themselves, which may imply something about the populist nature of some of them. While I cannot recall any occasion in which an elected official actually avoided indictment by remaining silent in his interrogations, it is easy to understand why members of the public would be angry at elected officials who exercise their right to silence, and why their trust in the rule of law could be compromised. It is only typical that some legislators would want to promote populist legislation that is backed by public outrage.
Related to the first of your bullet points, it seems to me that another risk of these proposed no-right-to-silence rules would be abuse for political gain. If a public official can be stripped of his office for invoking the right to silence, his political opponents would have even greater incentives for accusing him of corruption than they ordinarily would. They would know the public official will have to respond to an accusation either by invoking his right to silence and losing his office, or answering investigators’ probing questions. While one may argue that an honest politician has nothing to worry about in the latter of those two scenarios, a thorough investigation may very well uncover details of everything from personal matters to party machinations. Political opponents could thus use criminal process as a tool to gather information, which they may then deploy in political disputes.
Thanks for this very interesting input Blake. Indeed, there are various ways in which these bills, if passed, may be politically abused.
Thanks Guy for the eye-opening post, I agree with your conclusion and reasoning. Two minor points:
1. Following your second argument and in support of it, an additional cost of depriving public official of their right to silence, other than the importance of the rights of the ‘guilty’ and the existence of alternative accountability mechanisms, is also a cost to the ‘innocent’ as it erodes the exonerating signal of *choosing* not to exercise the right. This signal can be conveyed, of course, only if such a right exists (See Seidmann & Stein, Harvard Law Review, 2000).
2. As to your third argument, I think it’s worth commenting that while lying is possible – there are investigative methods that could in some cases expose lies and thus still render a true conviction more likely under a no-silence rule. However, in support of your reasoning, it may be the case that public officials may be able to lie more effectively, whether due to their innate skills or their better council representation, on average, compared to regular citizens.
Thank you for this really terrific comment Haggai. I am grateful for the two important points that you raised.
I fully agree with your first point. Interestingly, I had at one point considered integrating Stein and Seidmann’s theory into my post in a different way from which it is regularly understood. Instead of talking about what maintaining the right to silence signals to fact-finders, I thought about what it may signal to another audience – the general public. As mentioned in the post, one of the goals of the proposed bills is to promote public trust in the rule of law. The (reasonable) idea behind it is that this public trust is compromised when the public hears about a senior elected official who chooses to remain silent and not to cooperate with his interrogators. However, the choice of an elected official to remain silent in his interrogation carries with it at least one big advantage: it signals to the public that there is a good reason to believe that this specific elected official does not deserve the trust of the public. As the public is usually short of reliable measures to gauge the credibility of the statements that interrogated elected officials make to the police, their silence represents perhaps the sole proxy (though not perfect) for knowing whether or not an official should be considered trustworthy. If the ability of elected officials to remain silent is de facto limited, the public would lose this important proxy that helps it discern between more and less trustworthy elected officials. In this case, not only would such bills be disadvantageous for the “more trustworthy” officials, but also for the public at large.
I also agree with your second point, though it is important to remember that in the context of corruption investigations, the police often have no relevant evidence but the suspect official’s statement and the testimony of a single witness, whose reliability is very often a priori questionable.
And again – thanks for this great comment.
A note for readers of the blog: Alex Stein and Daniel Seidmann’s classic Harvard Law Review article to which Haggai referred in his comment may be found here: https://www.ssrn.com/abstract=271429.
Thank you Guy for your interesting and relevant post! I certainly agree with you that the (justified) war against official corruption sometimes leads to the creation of wrong legal tools.
Two short comments:
First, following your second argument – what about elected officials whose voters do not necessarily see their silence negatively? (See for example the criminal investigation against Aryeh Deri). I’m curious if your argument takes that into consideration.
Second, regarding your third point, I am not sure the purpose of coercing public officials to answer investigators’ questions is to find the truth but to provide answers to the public in real time regarding their criminal investigation.
Thanks again. Waiting for your next post after the elections in Israel.
Thank you for your interesting comment Shir! I appreciate you taking the time to read and comment on my post.
Regarding your question: it is true that in a situation where the elected official’s voters do not necessarily view negatively the elected official’s choice to remain silent, her incentive to cooperate with the police is weaker. However, she may still be worried about the risk that due to public criticism (coming especially from non-supporters of the official) she might be fired, where such a move is possible (as Ariel Sharon did in the case of Naomi Blumenthal in 2002). She may also be worried about other negative legal consequences of her silence, if and when she eventually stands trial.
With regard to your comment concerning the purpose of the proposed limitation on the right to silence – one of the bills’ explicit goals is to strengthen the war on corruption, which in this context I understand as having better tools to determine whether the interrogated official is indeed corrupt. However, even if you are right and truth seeking is not the purpose of these bills, I still think that limiting public officials’ right to silence would hinder the ability to reach the truth, for the reasons I indicated in the post.
Thanks again for your interesting comment!