Legal Advisor to Torah Mitzion
Yosef Ginosar was formerly a member of the Israeli General Security Service. He was involved in the ‘300 Bus’ affair, in which a bus was seized by terrorists. It was later announced that all the terrorists had died in the rescue, when in fact they were shot point-blank afterwards, when they no longer posed any danger. Ginosar covered up the real involvement of the GSS personnel in the affair. Ginosar was also involved in the ‘Nafso’ affair, in which a suspected terrorist was interrogated by a team headed by Ginosar. The interrogators acted improperly in the interrogation. In neither of these affairs was Ginosar indicted, and he received a Presidential pardon in the first.
In 1993, the Israeli Supreme Court was asked to rule on Ginosar’s appointment to the position of director general of the Ministry of Construction and Housing. How did the Court rule on Ginosar’s appointment? Would it have ruled in the same manner if it had applied the principles of the Halacha?
In our last column, we outlined the importance of the social principle of Teshuva, which enables a person to wipe the slate clean and start his life afresh after having cleared his name of any damage caused to it by the performance of his misdeeds.
While this is undoubtedly true in general, there may be occasions, even according to the Halacha, in which punishment and penance will not suffice to enable a person to be restored to his previous position of honor. Where the offense committed is extremely severe, for example, a person who killed inadvertently and was exiled to a city of refuge, he may never return to his post “because this terrible mishap occurred through him” (Rambam, M.T. Sanhedrin 17:8). The same would applywhere the office-holder is meant to serve as a personal example to the public – such as a judge ordered by theRivash (251) to be removed from his position and never again appointed to public office when he encouraged his son to strike a person with fatal effect.
Most significantly for the case at hand, however, is a case where the position is one which demands a great degree of public confidence, which has been eroded in consequence of the transgression, such as where the President of the Sanhedrin sins, in which case he is never restored to his former post, not even as an ordinary member of the Sanhedrin -Rambam, M.T. Sanhedrin 17:9. The reasons for this include the Chillul Hashem involved when a person in such a prestigious position sins, as well as the President’s function to guide the people in the right path (Resp. Radbaz 6:2078).
In the Ginosar case, the Court ruled against appointing Ginosar to the position of director general of the Ministry of Construction & Housing. On the one hand, it emphasized how:
“The need to rehabilitate offenders is an important consideration in the legal system. An offender who was tried and punished should be allowed to reintegrate into society.”
Nonetheless, the Court continued,
“The strength of this consideration decreases if the offense is serious in its circumstances or if the position that the candidate seeks to fill is one that requires an aura of confidence towards him and an aura of confidence to the system in which he seeks to be appointed a leader. It is one thing to rehabilitate a criminal who has served his sentence. It is another thing to place him at the top of the administrative pyramid.”
The conclusion the Court reached from the various considerations was that:
“It is unreasonable to appoint a candidate who has committed offenses in grave circumstances to a senior office in the Civil Service… An offense should be regarded as serious where its very essence and the circumstances of its commission not only undermine law and order in general (e.g. murder, robbery, rape) but alsothe foundations of Government structure (e.g., bribery, fraud and breach of trust, perjury, fabricating evidence, obstructing the course of justice). A candidate who has committed these offenses and holds a senior office in the Civil Service undermines the public trust in the executive authority and the Civil Service. He will have difficulty in serving as an example and a model for his subordinates. He will have difficulty requiring of them what is required of every civil servant but he himself has profaned. He will have difficulty in radiating fairness, trust, prestige, honesty and integrity to the general public…”
Ginosar committed a number of offenses. He gave false evidence in court (in the ‘Nafso’ affair). He obstructed legal proceedings (in the ‘300 Bus’ affair). The cumulative effect of all of Ginosar’s conduct was to undermine the administration of justice and so harm the foundations of society and the legal system. For, practically speaking,
“How can someone who gave false testimony and perverted the course of justice, and by so doing, prejudiced the freedom of the individual, head a Government Ministry? What is the personal example that he is likely to show to his subordinates? What requirements of honesty and integrity can he demand of them? How can a criminal who gave false testimony and perverted the course of justice and prejudiced the freedom of the individual maintain the confidence of the public as a whole in the fairness, honesty and dignity of civil servants?”
We can add the following to the words of the Supreme Court: only Hashem knows whether a person has truly undergone complete Teshuva. Society does not have the tools to appropriately examine this transformation. Various tests can be proposed, but even so, there is still the danger that the Teshuva is not sincere and genuine, especially where the tests proposed by the legislator are mainly technical in nature (how much time has passed since the date of the conviction).
Society certainly endeavors to encourage penitents, to forgive them for their past misdeeds and to enable them to start their lives afresh; however, alongside these considerations, lies society’s duty to protect the law and its dignity, which at times necessitates reminding the transgressor of his previous misdeeds – not for the purpose of shaming him, but in order to protect and reaffirm society’s commitment to its essential values.