high court justices 298.
(photo credit: Ariel Jerozolimski [file])
The state told the High Court of Justice on Wednesday that it should not intervene in the government's decision to appoint a government examination committee rather than a state commission of inquiry into its handling of the second Lebanese war.
The second Lebanon war: JPost.com special report
The court ruled last week that the hearing on two petitions asking it to dissolve the government-appointed Winograd Committee and order the government to appoint a state commission of inquiry would be heard no later than October 20.
It gave the petitioners - Ometz, represented by attorney Michael Corinaldi, and the Movement for Quality Government, represented by attorney Eliad Shraga - until October 17 to reply to the arguments presented by the state in the response it submitted on Wednesday.
Following a preliminary hearing on October 3, the High Court issued a show-cause order instructing the state to explain why it had not appointed a state commission of inquiry instead of a government committee of examination. It asked the state to address two specific questions: What it believed was the scope of powers accorded to a government committee of examination according to Section 8a of the Government Law, which provided the legal basis for the committee, and why it did not constitute a conflict of interests for the government to appoint a committee which would examine those who had appointed it.
In its response, the state maintained that according to Section 1 of the 1968 Investigation Committee Law, the government "may" establish a state commission of inquiry "if it sees that there is a matter of vital public importance at that moment which requires clarification." Thus, the law clearly leaves the question of whether or not to appoint such a commission to the government. Furthermore, the state argued, the question at hand had to do with the conduct of war and peace, and was therefore a matter that was the sole responsibility of the government.
According to Israel's constitutional system, it was the Knesset that was responsible for monitoring government performance and it had many tools at its disposal, such as bringing the government down in a vote of no confidence. Finally, it was not as though the government had not done anything about the problems revealed during the fighting. It had appointed a government committee of examination in accordance with Section 8a of the Government Law.
Since the committee was headed by a retired judge, the state maintained, "there is not any substantial difference" between the prerogatives of the Winograd Committee and the primary prerogatives of the state commission of inquiry.
The state rejected the petitioners' argument that a government appointed commission was not meant to investigate complex and multi-faceted problems and that, in essence, it was much closer to a committee of clarification (which does not have the power to summon witnesses to testify and grant them immunity, or obtain government documents) than to a state commission of inquiry.
"The obligation to place a retired judge at the head of a government examination committee points directly to the fact that it has much higher status than a committee of clarification and that in terms of its mission and prerogatives, its independence and the public's confidence in it, it is closer to a state commission of inquiry," wrote the state's representative, attorney Aner Hellman.
It rejected the petitioners' arguments that one of the main benefits of a judicial commission of inquiry is that the president of the Supreme Court appoints its members, thus guaranteeing the committee's independence, while in the case of a government committee of examination, it is the ministers that appoint them. This could lead to a conflict of interests, the petitioners had argued.
But according to the state, "No one argues that an appointment to a government examination committee involves a personal benefit of any sort... On the contrary, it is a heavy burden."
There was another advantage to the fact that the government was appointing the committee, the state continued. This way, it would be future-, rather than past-oriented, and would not be looking for culprits but focusing on learning the lessons that would remedy the faults revealed during the war.
"The most important goal the government considered in establishing the Winograd Committee was to learn the necessary professional lessons based on the way matters were handled in various [government] areas in order to improve them in the future," the state wrote. "This is more important than examining the events from a legal point of view. Therefore, the committee is made up of professionals and the majority of its members are not lawyers."
The group of reservists protesting against the government's handling of the war called the state's reply to the court an attempted cover-up.
"The nation will not agree to the coating and concealing of the truth," the group said in a statement.
The two-month old reservists' protest is calling for the establishment of a state commission of inquiry. On Thursday evening, there is to be a demonstration outside the prime minister's residence in Jerusalem.
The event is being organized by youth activists from across the political spectrum. Speakers will include former Meretz leader Yossi Sarid and Sderot Mayor Eli Moyal of the Likud.
Etgar Lefkovitz contributed to this report.