Sneaky Opportunism at the Last Cabinet Meeting

The State of Israel is not a research laboratory for experiments on the High Court of Justice, which remains the individual's strongest sanctuary in his challenge against the authorities.

Sunday's cabinet meeting is the end of the road. The long, distant road, which never brimmed with glory, will conclude with a series of discussions on issues of substance. All those present at the next cabinet meeting will make do with smiles and light pats on the back, during which it will be obvious to all that the ministers will soon comprise an "exiting government" (otherwise known as "transitional government"), and not a normal government. This new state of affairs will go into effect once Prime Minister Ehud Olmert announces his resignation.

So what will happen this morning? Theoretically, in a country lacking in basic principles of good governance that go beyond basic laws, everything is permissible. The government is still formally a government to all intents and purposes, and theoretically it could continue enacting policy without any specific legal hindrances to worry about. Yet the reality is not so.

According to a multi-faceted High Court ruling issued in connection with numerous scenarios, all administrative bodies must act reasonably and proportionately. In 2000, then-attorney general Elyakim Rubinstein tried to dissuade then-prime minister Ehud Barak from continuing to push forward the diplomatic shopping cart with the Palestinians, but the tendency to act won out in the end, and the High Court declined to intervene.

Last Wednesday, Attorney General Menachem Mazuz announced that the government needs to demonstrate caution in imposing its authority, including in matters related to the peace process, as well as making political and bureaucratic appointments. Mazuz was replying to Knesset members who urged that he prevents the prime minister from taking diplomatic steps. The attorney general reasoned that while the government is not to be considered a transitional caretaker government at this juncture, Olmert's imminent resignation will render it such. "We are in the midst of an unusual, unique situation that, even at this early stage, requires a cautious approach in exerting the government's and ministers' authorities," Mazuz said.

The basic guidelines relating to caretaker governments were established by an extended panel of High Court justices in January 2001, who issued their ruling in response to a petition against the Barak government's diplomatic negotiations following the premier's resignation. It would appear that these principles also apply to a government prior to a prime minister's formal resignation. In the ruling, Supreme Court President Aharon Barak made it clear that a government's resignation does not leave a vacuum of authority in its wake, and that the government continues to perform its functions so as to ensure continuity and stability. The court said the government must act reasonably and proportionately, and must exercise a level of restraint that is commensurate with its standing - unless there exists a "public need for action," such as defending the country in a time of war.

The most infuriating interpretation of the court ruling was provided by the prime minister and Justice Minister Daniel Friedmann, both of whom scheduled a meeting this morning to discuss the latter's proposal to amend the Basic Law: The Judiciary in a manner that would limit the Supreme Court's authority to annul laws that run counter to the Basic Laws.

The proposal was conceived a year ago, but Friedmann refrained from submitting it for government approval out of fear that the Labor Party would vote it down. The proposal was designed to effectively undo the constitutional revolution that has determined the course of events in Israel over the last 16 years. Today, all courts are authorized to declare a law unconstitutional, but in practice only the High Court does so. According to Friedmann's bill, only an expanded panel of nine High Court justices would be authorized to rule on a law's constitutionality, on condition that the matter deals with an infringement on basic rights as stipulated in the Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation.

The High Court would thus not be permitted to rule on the most significant petition awaiting adjudication - the question of the privatization of prisons, which is tied to Basic Law: The Government. Friedmann's bill would enable the government to reenact any law struck down by the High Court so long as it wins approval from 61 MKs, with no need to amend the basic law as is required today, something which evokes a public debate irrespective of the formal majority needed to change the law.

In December 2005, the Supreme Court noted that during a transitional phase, "something happened to the foundation of authority," and that the ruling body is obligated "to act with restraint in imposing its authority in relation to all those matters that are not urgent and especially necessary to act upon."

In March 2006, the court ruled that during such a period, it would be improper to deal with fundamental changes such as determining the necessity of removing a minister who has yet to be served with an indictment.

The justice minister, who has ignored the High Court ruling and shunned considerations based on constitutional principles, allowed an official in his entourage to declare that he is not "carrying out an underhanded maneuver" on the eve of Olmert's resignation, since nobody can "expect that ministers remain glued to their seats until the end of their terms without being able to make decisions on matters they consider important."

Whoever values the rule of law expects Friedmann to get up and walk away. The new prime minister, whoever that may be, should show him the door on his way back to the academic work in which he so excelled. The State of Israel is not a research laboratory for experiments on the High Court of Justice, which remains the individual's strongest sanctuary in his challenge against the authorities.