The petition by the Schalits on behalf of their son, Gilad, yet again raises the question of whether the Supreme Court should be deciding on issues that are clearly the responsibility of the government.
By DAN IZENBERGnaom schalit 224 88(photo credit: AP)
The petition filed this week by Aviva and Noam Schalit has triggered another round of debate over the prerogatives of the High Court of Justice. It calls on the security cabinet to reconsider the decision to open the Israeli-Gaza border crossings without the release of their son, Gilad.
Which raises the question: How does the Supreme Court even entertain the possibility of rejecting a government decision on a matter so clearly related to questions of war and peace, and the security of tens of thousands of citizens living adjacent to the Gaza Strip - issues that are clearly the responsibility of the government? And why didn't it throw out the petition without considering it?
This question echoes the accusations of "over-activism" that Justice Minister Daniel Friedmann has been hurling at the court over the past year-and-a-half. During his time in office, Friedmann has raised the possibility of prohibiting the court, through legislation, from hearing petitions related to security matters and those affecting the government budget. He also supported a private Knesset member's bill to bar the court from hearing petitions related to citizenship matters.
So far, none of these initiatives has come to fruition. But Friedmann keeps saying that he is watching the court to see whether or not it conducts itself with what he considers the proper degree of constraint on these matters.
Prof. Ariel Bendor, who currently teaches at Bar-Ilan University, and spent 17 years as a member of Haifa University's law faculty, is one of a battery of lawyers, including Eldad Yaniv and Sharon Stein, who represent both the Schalit family and the families of Eldad Regev and Ehud Goldwasser.
Bendor has not taken sides in the battle between Friedmann and Supreme Court President Dorit Beinisch. He told The Jerusalem Post there were some elements in the justice minister's program that he supported, and others that he opposed. "Each proposal according to its own merits," he said. Furthermore, he believes that Beinisch and the judges are out of line in taking an active part in the public debate over the prerogatives, structure and administration of the court.
But he does not agree with Friedmann's desire to restrict justiciability - that is, to limit the topics the High Court of Justice should be permitted to adjudicate.
With regard to both cases, Schalit and Regev-Goldwasser, Bendor stresses that he and his colleagues were not challenging the government's right to decide cease-fire terms or the terms of a prisoner exchange. The petition in the case of Schalit, and the threat of a petition in the case of Regev-Goldwasser, were based on the fact that the government had broken the law (in Schalit's case), or appeared to be in the process of breaking the law (regarding Regev-Goldwasser.) The government, like any individual citizen, must abide by the law, he said.
"In a proper world, one should not have to go to court, because the government authorities function properly," said Bendor. "We have the impression, in the case of Regev-Goldwasser and in the case of Schalit - where it is more than an impression, because the High Court has said so - that the government acted improperly in the legal sense and beyond that. Even though we have no desire to go to court, in the Israeli reality, it is sometimes necessary to threaten legal action - and sometimes to carry out the threat - to force the government to fulfill its lawful duties."
IN THE Schalit case, the lawyers asked for three types of remedy. The first two called on the court to order the state not to carry out the cease-fire agreement unless the release of Gilad Schalit was an integral part of it. In other words, the petitioners were essentially asking the court to nullify a signed international agreement.
The third remedy, however, called for the court to order Prime Minister Ehud Olmert to convene the security cabinet again to reconsider its June 11 decision, and discuss whether or not the opening of the border crossings is conditional on Schalit's release. The court itself would not intervene in the original security cabinet decision.
If anyone did, it would be the security cabinet itself.
The key grounds for this demand on the part of the petitioners was that they were certain the cabinet had voted to include Schalit in the cease-fire agreement, but the government had ignored the cabinet decision or even acted in violation of it.
If this, indeed, were so, those responsible for executing the security-cabinet decision, namely Olmert and Defense Minister Ehud Barak, had either ignored the cabinet decision or done the opposite of what it entailed.
"If we were to say that a certain topic was not justiciable, it would mean that in that area, the government could act illegally," said Bendor. "This is inconceivable. The Schalit petition is an excellent example. We argued that the cabinet, the legally authorized body, made a decision, and the decision is either not being implemented, or the opposite is being implemented. If the court does not consider this argument, it means that while the law gives the authority to the entire cabinet, the prime minister and defense minister can do whatever they want. Who is to judge this matter? Should the government leaders judge themselves?"
In the end, the petition was vindicated by the fact that the judges clearly agreed with the petitioners' charge that something about the security-cabinet decision was wrong. Since the proceedings are classified, the public cannot know what, exactly, was wrong. But the judges made clear, though they did not say so explicitly, that they expected Olmert to reconvene the security cabinet regarding Schalit. "We believe that the security cabinet should go back and discuss the specific matter of Gilad Schalit, so that its decisions will be clear to everyone involved, and to prevent misunderstandings," the judges wrote in their ruling. "We will not conceal the fact that we considered issuing a show-cause order in the spirit of the third remedy requested by the petitioners. However, in view of the undesirable implications of such a move, and our awareness that even without a show-cause order, the security cabinet will reconsider the decision, we have decided not to do so."
Though the court urged, if not ordered, Olmert to reconvene the security cabinet to discuss Schalit, it did not intervene in the substance of the original decision. All it wanted was for the security cabinet meet again, so that its members would have the opportunity to get a clearer understanding of the cease-fire resolution they had previously passed, and to determine for themselves whether the ministers responsible for executing the resolution had done so faithfully.
Bendor told The Post that in the case of the prisoner exchange involving Regev and Goldwasser, the issue at stake was also a legal one.
According to the law, the government, not the prime minister, must decide whether to approve or reject the draft agreement. Once an agreement is reached - in this case between the government's authorized negotiator and Hizbullah - the law itself determines that the matter must be brought to a vote "within an appropriate amount of time."
"The authority to approve the prisoner exchange belongs to the cabinet," said Bendor. "When negotiations are completed, the matter must be brought to the government for a decision. With all due respect, Israel does not have a presidential system. The prime minister is not the executive - the government is."
As for the demand that the matter be brought to a vote immediately, Bendor said, "Immediacy is a legal rule. It isn't new. There are judicial rulings about it as far back as the British Mandate. The government's authority to vote on an agreement must be activated with the appropriate speed, each case according to its own merits. Here we are talking about an agreement with Hizbullah. The appropriate speed is immediately. The government can wait even for a few months if it has good reason to. If it doesn't, there is a danger that in the meantime the agreement will collapse. Hizbullah will not wait."
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