Judge, jury and executioner

Regardless of how the High Court of Justice ultimately rules, its issuance of a show-cause order last week against the government’s refusal to establish a state commission of inquiry into the Lebanon war – thereby effectively asserting the power to overturn this decision – represents a major new encroachment on the powers of the other two branches of government.

The problem that bothered the court is undeniably real: By instead establishing a governmental inquiry committee, the government retained the power to appoint the committee’s members, meaning that it essentially hand-picked the very people who will be investigating its actions. And that, despite the unquestionably high character of the committee members actually chosen, obviously makes it harder for the investigation to earn public credibility.

Nevertheless, quite aside from the fact that the law explicitly gives the government, and not the court, the right to make this decision, this is a rare case in which the law also explicitly assigned a watchdog to the government. And the watchdog chosen by the law was not the court, but the Knesset State Control Committee.

According to the Commissions of Inquiry Law, there are two, and only two, bodies authorized to establish a state commission of inquiry. One is the government, and the other is the State Control Committee. Nor was the latter’s inclusion accidental: The State Control Committee’s explicit function is to serve as a government watchdog, and therefore, unlike most Knesset committees, the opposition both chairs the panel and comprises a majority on it.

In other words, this is one issue on which there is no possibility of the government running wild if unchecked by the court: A Knesset committee with no interest whatsoever in the government’s survival has been given the power to establish a state commission of inquiry any time that it deems the government delinquent in failing to do so.

Granted, there is one restriction: The State Control Committee can establish a state commission of inquiry only if the state comptroller (who is equally independent of the government) publishes a report on that issue. However, State Comptroller Micha Lindenstrauss has already announced that he plans a comprehensive report on the war, assigned some 50 investigators (a huge number) to the task and promised to publish the results as soon as possible. Thus there is no fear that the committee will be deprived of the opportunity to establish a state commission of inquiry should it so desire.

BY ASSERTING its power to overrule the government on this issue, therefore, the court not only usurped the decision-making power that the law grants to the government, it also usurped the watchdog function that the law explicitly grants to the State Control Committee. In short, it encroached on the powers of both other branches of government simultaneously. And a show-cause order is unquestionably an assertion of the justices’ right to intervene: Cases that the court considers nonjusticiable are dismissed immediately, before such an order is issued.

But the judicial power grab represented by this order is even worse than that – because by law, if a state commission of inquiry is appointed, the Supreme Court president will choose the commission’s members. In other words, the court has set itself up as judge, jury and executioner: It will decide whether or not a state commission of inquiry should be established; it will hand-pick the members of this commission; and then, should the commission (as such commissions often do) recommend the ouster of any senior officials, the court, judging by its track record in other cases, will assert the right to declare the government’s behavior “unreasonable, and therefore illegal” should it decline to implement these recommendations – although by law, the government is not required to do so; that is why they are termed “recommendations.”

It was precisely to prevent such an accumulation of power in the hands of a single branch of government that the law gave both the executive and the legislature the right to establish state commissions of inquiry, but denied this right to the court. Such commissions enjoy enormous prestige, and hence considerable power – and the law was deliberately crafted to divvy up this power, along the time-honored principle of “Peter cuts the cake but Paul chooses his piece first”: Only the executive or legislature can establish such a commission, but it is the judiciary that picks its members.

Now, the court has thrown this careful division of power out the window and declared that it has the right to both cut the cake and choose its piece first.

It is quite possible that the court will ultimately decide not to overturn the government’s decision in this particular case, but that will in no way diminish the scope of its power grab – because this is the modus operandi that the court has been using to expand its power for years. First, the court asserts a new power without actually using it. Since most of our politicians have scant interest in long-term precedents as long as the court upholds the concrete case at issue, this ensures muted reactions from the cabinet and Knesset. Then, at a later date, the justices begin exercising this new power, relying on the precedent that they themselves set in the earlier ruling.

In this case, the cabinet can do little to protest the court’s encroachment; its own initial decision was too suspect in the eyes of too many Israelis to make such a protest credible. The State Control Committee, however, can and must protest vigorously against this usurpation of its authority.

Otherwise, the court will be able to notch another success in its thus far unimpeded campaign to slowly but surely gather the powers of all three branches of government into its own hands.