On January 25, 2001, the High Court of Justice ruled on several petitions filed by leading right-wing activists against then-prime minister Ehud Barak. These motions, authored by Moshe Feiglin and Hilel Weiss among others, sought to bar the premier from continuing to engage in negotiations with Yasser Arafat on a permanent agreement.
The petitioners maintained that as Barak was heading a transitional government, he was not in a position that allows him to create political and security-related facts on the ground with historical ramifications.
An augmented bench of seven justices headed by then-Supreme Court president Aharon Barak rejected the petitions. Only one justice, Yaakoc Turkel, ruled in favor of the petitioners. In explaining their verdict, the majority bloc discussed the authority of transitional governments. Their arguments pertain directly to Ehud Olmert's current status and the petitions we've been hearing about recently, which concern the legitimacy of his moves and decisions.
On Thursday, the mayor of Ma'aleh Adumim, Benny Kashriel, lambasted the prime minister and defense minister's decision to relocate part of the separation fence so as to return some 4,000 dunams (about 1,000 acres) to neighboring Palestinian villages. Kashriel maintained that Olmert, in the dusk of his term in office, lacked the authority to make a strategic decision of this magnitude.
Several days previously, some in the political establishment called for postponing the national budget's approval until Olmert steps down. The right-wing parties are producing similar arguments in calling for preventing Olmert from furthering his efforts to reach a permanent agreement with Palestinian President Mahmoud Abbas.
On the face of it, there is a logical and moral basis for contesting the right of an outgoing prime minister to make crucial decisions. When Barak dispatched his envoys to continue the talks in Taba on the basis of the Clinton plan for peace in the failed Camp David negotiations, he was challenging the will of the Knesset. Barak was then heading a minority cabinet, after most of his coalition partners had abandoned him. He had only three weeks before the end of his term. His cabinet disintegrated over the same issue - the negotiations he was engaged in with the Palestinians, and the far-reaching concession attributed to him.
The renewal of negotiations in Taba was taken as an act of defiance, attesting to the prime minister's arrogance. Barak maintained that he was drawing support for the move from the public that had elected him 18 months previously on the basis of his platform, in which he pledged to exhaust talks with the Palestinians. The Taba move failed: The summit ended without practical results, largely because of Barak's shaky political status.
Olmert's status is different from Barak's. He is going to lose power not because of any objection from the Knesset and cabinet to the deal he is discussing with the Palestinians, but because he is suspected of foul play. Therefore, if the High Court did not intervene regarding Barak's authority to reach a settlement with the Palestinians while heading a minority cabinet, it certainly should not contest Olmert's right to do so under the current circumstances.
Still, in Olmert's case as well as in Barak's, it is valid to ask whether a prime minister in the very last days of his term should carry out a last-ditch, surprise move that is intended to shape the fate of this country for generations to come.
In its 2001 ruling, the High Court determined that there is no legal stipulation to prevent a prime minister heading a transitional government from making long-term decisions.
The justices rejected the motion to limit a transitional government to everyday matters and nothing more than that. The justices pointed out that the definition of "everyday business" is elusive in the the first place, and recalled the principle of governmental consistency. However, the bench did add that a transitional government should exercise reasonable authority appropriate with its particular situation. In effect, the justices called for the transitional government to demonstrate restraint, and stressed that as its days in power pass, its realm of reasonable action is reduced.
The court's directives jibe with common sense and what is appropriate political conduct. The argument that Olmert lacks the authority to pursue his policy should be taken off the agenda. Olmert deserves backing when he acts to have the budget approved or tries to change the route of the Security Barrier. His mandate to sign a binding agreement with Abbas (or with Syrian President Bashar Assad) is less evident, but since his diplomatic probes are designed to create nothing more than a shelf agreement to be approved by the Knesset, Olmert's efforts to complete the job should not be opposed.
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