The following op-ed was published on the Ynet news site by ACRI Attorney Lila Margalit on April 2, prior to the lifting of the publication ban on the Anat Kamm case. The ban was rescinded following ACRI’s intervention on the matter.
The recent security incident, shrouded behind a veil of censorship in the Israeli media, has already made waves around the world. Has Israeli democracy lost its way, and does this pose a threat to all of us?
China, Burma, Iran – these are nations notorious for the illicit use of secret trials in handling both criminals as well as political dissidents. In January of this year, al-Jazeera reported on the secret trial of seven Iranian citizens who had participated in anti-government protests. According to the al-Jazeera correspondent in Teheran, Eliraza Ronghi, requests by the defendants’ lawyers to hold a public trial were rejected. “…We have no information regarding how the trial was conducted, the allegations made, or even who exactly was convicted.”
By contrast, in a democratic state, one of the most critical characteristics of a free regime is that the accused are tried openly. They do not disappear from public view into secret detention, nor are they subjected to court proceedings of which the public has absolutely no knowledge. The right of an individual to a public trial is a basic and inalienable right of democracy, and is one of the cornerstones upon which the rule of law is based.
Nonetheless, it is important to occasionally take a step back and go over basic concepts, if only as an exercise in civics. It is incumbent upon us to remember why the right to an open trial is of such critical importance, and conversely, why disproportionate infringement of this right is so dangerous and destructive to a society aspiring to be free.
The public nature of open trials represents a critical check against tyranny. It protects against the opportunistic abuse of criminal proceedings to achieve political gains, and ensures transparency in the State’s rationale in bringing people to justice. Open trial allows the public to critique the handling of criminal proceedings, thereby serving as a vital means of ensuring fair trial. “Sunlight is said to be the best disinfectant”- a banal phrase whose deep significance is often overlooked; the power of the sun to disinfect is countered by the power of darkness and secrecy to breed corruption of public norms, arbitrary governance, and unjust blows to human rights.
However, even in a democracy the principle of public trial is not an absolute one. There are certain situations which justify legal proceedings being held behind closed doors or the imposition of a gag order on the details of a case. Such measures may be necessary to protect the identity of a minor convicted of a misdemeanor, or to prevent the disruption of an ongoing investigation. Security concerns may also justify closed-door trials, but only in the most extraordinary of cases.
As in any matter relating to the limiting of human rights, the principle of proportionality is key. Proportionality ensures that the restriction of an individual’s right to public trial and the limitation of the right of the public to follow legal proceedings, occurs only when absolutely necessary to protect vital and legitimate security concerns. Such exceptions can never become the norm.
It is permissible to place a gag order on specific details of a security-related case, while in extraordinary situations sweeping gag orders may be justifiably imposed for a limited period of time, in order to allow the authorities to conduct an unimpeded investigation. However, a sweeping, open-ended gag order is never proportional. Each such order raises serious questions about the judgment of the security authorities and about the effectiveness of judicial supervision.
Furthermore, prolonged secrecy of an investigation not only isolates the suspect from the public but also prevents necessary public discourse on the nature of the allegations. Even when the suspect or defendant consents to a gag order, this in no way justifies the practice. The prosecuting authorities as well as the courts must act as loyal public servants in the execution of justice, and their proceedings must not be concealed from the public’s eye.
One of the basic tenets of democracy that distinguishes it from totalitarianism is the protection of open, free and in-depth public discourse regarding every situation in which a citizen is brought to trial by the State. The defense of this basic principle is the defense of us all. Those who would trample this principle imperil not only the rights of the accused – they imperil us all.
