The High Court of Justice will issue its decision this morning on what jurists call a tough case: the legitimacy of the attorney general's decision not to indict Prime Minister Ariel Sharon.
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The High Court ruling will be impeccably legal, but it will have public-political ramifications far from the galaxy of law. The court's involvement in the attorney general's decision will create a political earthquake, yet a lack of judicial intervention would also have major public consequence.
Knowing the bottom line will not suffice with this kind of ruling. The judges' formulation of the ruling, and even their reasoning for a lack of judicial involvement, will influence the public standing of the three central figures involved in the case: Sharon, Attorney General Menachem Mazuz, and former state prosecutor Edna Arbel, who is now serving on the Supreme Court. Arbel recommended that Sharon be indicted for taking bribes in the Greek island affair, and Mazuz didn't mince words when he rejected Arbel's advice as being "based on a treatise of general claims, and indirect and circumstantial evidence."
Thus did the High Court find itself compelled to decide between two opposing positions. No legal acrobatics will be able to hide the judges' opinions on who was right. Even if all the judges hearing the case dismiss the petitions against Mazuz, there are still likely to be differences of opinion between the majority and minority views, and over the reasons for rejecting the petitions. It is the explanations, and not just the final result, that will be the central significance of the ruling.
From a formal legal perspective, the judges have one of two principal options: accepting the petitions against Mazuz and issuing a conditional injunction mandating him to provide additional explanations for his decision, or rejecting the petitions requesting that a conditional injunction be issued. If the petitions are rejected, the judges have conflicting options on how to explain their choice, and choosing a mode of reasoning has significant public import.
The judges are likely to reject the petitions - basing such a decision on the rejection of previous petitions against the attorney general - on grounds that intervention in the attorney general's decisions is warranted only if his assessment of the evidence is unreasonable in the extreme.
For instance, the High Court decided in 1997 not to intervene in the attorney general's decision not to indict then-prime minister Benjamin Netanyahu for fraud and breach of trust in the Bar-On affair. The judges in that case said it was possible to disagree with the conclusions of the attorney general and the state prosecutor and arrive at a different conclusion entirely, but they did not intervene because they did not find extreme unreasonableness.
A similar decision in this case will pose problems for Sharon from a public perspective, as well as preserving Arbel's dignity and giving Mazuz a technical victory even while showing discomfort with his decision.
Regardless of what reasoning the judges provide, if the High Court decides to reject the petitions, it will once and for all put a legal end to the Greek island bribery affair
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