Between Expertise and Authority

The 'Council for Law and Justice' is an association of respected retired judges, headed by a former Supreme Court president, with whose agreement, and sometimes with whose encouragement, present serving justices were appointed.

The "Council for Law and Justice" is an association of respected retired judges, headed by a former Supreme Court president, with whose agreement, and sometimes with whose encouragement, present serving justices were appointed. Recently, the president and other retired judges appealed to the High Court of Justice in the name of the council, against a Supreme Court decision. From the other direction, a similar body, let's call it the "Council for Jurisprudence and the Law," also headed by a former president of the Supreme Court, submitted an appeal with contrary arguments. What can the High Court do? Can it rule against itself, and if so, in favor of which of the two sides, whose judicial understanding is uncontested, and whose members, were it not for the age ceiling (70), would still be sitting on the bench?

Meir Shamgar and Moshe Landau have spared Justice Aharon Barak this dilemma. Even the thought of these two former Supreme Court presidents presenting themselves as parties to an appeal - they and other retired judges and state and district prosecutors - is enough to arouse dismay in the judicial community. The comparable situation - in File 2056/04, High Court of Justice (regarding the separation fence) - is the respectable status granted members of the Council for Peace and Security - former senior army and police officers, and members of the Shin Bet security services, the Mossad and the Foreign Ministry - who offered their expertise on professional questions of dominant hills and a rifle's firing range, as opposed to that of the present Israel Defense Forces command.

This is not a strategic dispute over national security, but a tactical confrontation, of the type in which a general who fought in Nirim in 1948 and in Suez in 1973 has no advantage over a battalion or brigade commander in the territories at present; after all, even right-wing generals, if a handful can be found, can band together in an opposing council for reconciliation and serenity, or a council for order and cleanliness.

The High Court ruled in favor of the present-day commanders, because they are the ones who bear the responsibility, but implicitly recognized the ability of outside experts, who once served in the security apparatus but are no longer a part of it, to propose military alternatives no less correct than those of the present officers' corps.

Court President Barak rejected, in the name of the court, any pretense to military expertise (although he, like his colleagues, used to do reserve duty in the military court of appeals with the rank of colonel.) The active commanders are the military experts, ruled Barak, but the justices are the "humanitarian" experts, who weigh the human injustice caused by military activity against the necessity and the usefulness that justify it. Through the application of this second type of expertise, it was found that putting up the fence - which is essential in itself - along a certain route and no other, without alleviating the situation for the residents or compensating them, is invalid.

This ruling ignores the fact that the army also has "humanitarian experts," the Civil Administration officers, who are the aides of the commander of the forces in the occupied territory (excuse me, the territory under belligerent seizure) just like the intelligence and artillery officers. Ostensibly, the head of Central Command Major General Moshe Kaplinsky, did his duty by listening to the views of the chief of the Civil Administration, Brigadier General Ilan Paz, and weighing them alongside other considerations. In effect, the High Court decision distinguishes not only between expertise (the former generals) and authority (Kaplinsky), but between authority and arbitrariness as well. When the authorized commander is too deaf to other needs, the court expropriates the authority from him.

The High Court decision was not only a defeat for Prime Minister Ariel Sharon and Defense Minister Shaul Mofaz, but for their legal advisers, too - Attorney General Menachem Mazuz and Judge Advocate General Menachem Finkelstein. In January, when she was serving as the State Prosecutor and the acting attorney general, Justice Edna Arbel warned Sharon and Mofaz of this outcome, if the government insisted on not changing the route of the fence. They disdained her advice and refused to change it. "I am capable of defending every centimeter of the present route, and of demonstrating why it is necessary for the defense of Israeli citizens," boasted Mofaz, according to the quotes in the newspapers at the time, adding that he "often deals with the humanitarian problems of the Palestinians."

In the fence appeal, the High Court in effect preferred the stance of Edna Arbel to that of Mazuz. Tomorrow the High Court discussion of the dispute between them regarding the Sharon file will be renewed. The High Court can rely on its own precedents, and prefer the person in authority, the attorney general; but it can also set a new precedent, and rule that it was arbitrariness rather than authority implemented here. If every supreme judicial instance were forever chained to an inflexible law, the sun would have continued to revolve around the earth.