Democracy in Israel, as in other Western countries, is in danger because of unrestrained inflation in legislation. Not only that, but the legislation that goes into the rule book every year is often drafted in a vague way, with sweeping words and long, cumbersome sentences. This worrying phenomenon is not unique to Israel, and is due, in part, to politicians' willingness to respond - or appear to respond - quickly and effectively to the media agenda that is stirring the public arena in reports of accidents, crime, omissions and scandals.
The ministers and MPs are competing who will submit a bill that will be named after them and presented as a relevant treatment for the phenomenon that has received echoes in the media. Politicians act on the assumption that their legislative function is portrayed in the public as a practical solution to problem solving, but in many cases it is a showcase for corporate purposes. It is not always the opinion of lawmakers and their critics to see if a new law is really needed to address the issue that has agitated the media this past week, or why it is impossible to settle for tools already in place in existing legislation.
One of the side effects of this norm is the tendency of Knesset members to impose penalties without stopping and thinking about the damage caused. What is the difference between three years and five years in deterrence? Even a week in jail is a horrible punishment, especially when you add the defendant's property forfeiture. The result is that the issues regulated by the law are constantly multiplying, and the decree of the law is becoming increasingly cruel. And the tougher and stricter the legislation, the more the defendants are in a situation where it is almost mandatory to admit and reach a plea bargain.
The most basic principle of democracy is that everything is allowed, except as prohibited by law. The European Court of Human Rights has often ruled that penalties must be clearly drafted so that every citizen knows exactly the boundary between what is allowed and prohibited. According to the same ruling, the courts' authority to interpret criminal legislation is limited to interpretation derived directly from the language of the law. Extensive interpretation is prohibited, as is an innovative interpretation that has no reference in rooted case law.
There are many examples of sweeping wording, such as breach of trust, in particular in the financial field. Laws that do not draw a clear line between what is allowed and the prohibited. More and more areas are turning gray, and citizens have to guess whether their behavior is allowed or not. In many cases, attorneys are forced to advise clients to avoid any action, not because it is clearly prohibited or criminal, but because law enforcement agencies may interpret it as illegal. Thus it turns out that more and more prohibitions are imposed on the individual by legislation whose boundaries are unclear.
This is a disaster for individual freedom. The legislature should concentrate more on budget matters and minimize the number of laws enacted each year. Napoleon's code, which is the basis of the modern legal system in France and Europe, was drafted in short and clear sentences. Napoleon would turn over in his grave at the sight of today's law books; A cumbersome code with sentences that span entire pages, restricting individual freedom in almost every area of ​​life. Perhaps instead of competing with over-enactment, the following Knesset members will enlist in reverse action: repealing unnecessary laws and criminal law provisions, and a new, straightforward drafting of the vague laws.
Attorney Ron Sofer is a member of the Israeli Bar Association in New York and Paris