When the board does not issue a death warrant against my father but kills him

When the board does not issue a death warrant against my father but kills him

Doron Afik, Esq.
March 13, 2021

My father - David Afik - passed away from Corona in December, 2020, although he never contracted the virus. My father was executed at the age of 86 under a death sentence imposed on him by the Israeli government, even though it never took a decision to kill him. Au Contraire, the death sentence was issued by default, by the government deciding not to take the necessary actions. Actually, the government did not really decide not to take the necessary action, it simply did not decide to take them. This article is not meant to get the public to vote in an election in a way that will make sure the culprits in my father's killing are no longer in government, ever, because people that are entitled to vote should be smart enough to reach this decision themselves. I just want, as a lawyer who specializes in advising corporations and their management, that officers (and there should be no difference between behavior of government ministers and corporate officers) will understand, that there is no such thing as "not making a decision" because not making a decision sometimes means making the opposite decision.

My dad was orphaned from his father at the age of 8, at a time when his chances of survival were nil, yet he managed by his own to self-learn and compete with others who came with background and assistance. My father was elected mayor although he was never a politician, and maybe because of that. He wasn't educated, but was very smart. When elected as mayor, after several years he resigned because his views were that the term of a head of a governmental unit must be limited because no person has a monopoly on deciding what is correct. Later he was re-elected.

For 12 years he was the mayor of Ramot Hashavim at the same time he was flying all over the world as an El Al flight-engineer and, concurrently, built himself a carpentry behind the house where he created furniture for family and friends, another skill he acquired by himself. Then, at the sunset of his life, when he began to lose it, but he and my mother could have still lived happily for a few more years, the government decided to issue a death sentence and without due process (without any process!), put my father in a house arrest by deciding not to take care of the elderly and thus put all the elderly in house arrest which means, for them, a death sentence.

Fear not, the government is not legally liable. Only recently, in a weird verdict, has the Family Court held that the government is not liable for damages for the birth of a baby with malformations even though for 18 years the Ministry of Health has refrained from adopting international recommendations in Israel to take folic acid during pregnancy. The Court held that it would not interfere with the discretion of the Ministry of Health even though there was no discretion here. On the contrary, there has been a lack of discretion here for many years. In that weird verdict the Court also held that there is no contributory negligence for the claimants, the parents, who for religious reasons have refrained from terminating the pregnancy and deliberately chose to give birth to a baby with malformations. They should have had a 100% contributory negligence because not taking a decision is, in fact, taking a decision.

Israeli Companies Act stipulates that an officer is obliged to act diligently, after receiving information and after exercising discretion. A board of directors of a company that for a period of time does not take decisions due to fear that it may make a mistake or due to internal political considerations is exposed to a shareholders' claim for the damage caused due to the board's negligence. Excessive caution and avoidance of decision-making are breach of fiduciary duties. Even if the grounds are the inability of the director or lack of time. In a case heard by the Supreme Court of Israel in 2016, it was held that when a director understands that he is not qualified to perform his job or that he does not have time to perform it, he must notify the company of his resignation and failure to do so constitutes negligence. (Government ministers should act the same and be personally liable if they do not!). In the case of the Bank of North America, the Supreme Court also held in 2003 that not only is a director required to be involved and attend board meetings, but sometimes he is also required to demand the convening of the board where the board refrains from convening.

And what about my Dad? Because this is not a political article but an article on corporate law and how corporate offices are supposed to act, I will not seal it with a recommendation to remember in the coming elections who did not take decisions, who themselves violated the decisions they themselves made and who was not immediately dismissed, as should have been the case in any corporate body that respect itself, or as George Orwell described it back in 1945: " All animals are equal, but some animals are more equal than others..."