Although fifty-one years after its inception, the state of Israel is still preoccupied with existential questions of war and peace, it is increasingly addressing fundamental internal issues. Inter alia it deals with the consolidation of a universally acceptable national ethos, the formation of legal codes and order, and their application to all sectors of the general public and at all levels of elected and appointed governance.
Criminal law in most democratic societies is largely shaped by basic prevalent ethical norms. Only on rare occasions, when protection of vital issues is indicated, does criminal legislation digress from currently accepted moral dispositions. Article 284 of the Penal Code provides the guidelines of appropriate lawful behavior for elected and appointed public officers. This study has two purposes. First, to examine whether a clear and coherent approach exists among the general Israeli public, its public servants, and its elected politicians as to what constitutes proper and acceptable behavior on the part of public functionaries. Second, to comprehend the ramifications of these sociopolitical conditions on the practical and desirable intervention of criminal law and policy of criminal law in political life.
Our results show that the ambiguous wording of fraud and breach of trust in the Penal Code, and the lack of public awareness make ethical and legal enforcement very problematical. The general characteristics of the offense are analyzed through exploration of two judgements, namely the Bar-On and Simcha Dinitz criminal cases where the courts have failed to impose the proper ethical and criminal norms on administrative and political elite.
I argue that given the present situation where no effective legal or
social barriers are in place to prevent breach of faith on the part of
high-ranking officials, criminal proceedings are important practical recourse
of prevention and education. While massive intervention of criminal
law in politics may be problematic, prevention of this offense and generation
of educational symbols are essential for the safeguarding of democracy
and the rule of law. Hence it is imperative that legislators, courts,
and enforcement organs will cooperate to implement existing legislation,
and enforce it upon the political elite more systematically than it has
been done heretofore.