The High Court of Justice is taking the petitions submitted by Ometz and the Movement for Quality Government against the Winograd Committee and for a state commission of inquiry more seriously than some observers had expected.
Ometz originally submitted its petition on August 18, almost immediately after the fighting on the Lebanese front ended, demanding the establishment of a state commission of inquiry to examine the government's performance. The Movement for Quality Government petitioned the court on September 19 against the government's decision to appoint a committee of examination headed by retired Judge Eliahu Winograd instead of a state commission of inquiry.
According to the routine procedure for dealing with High Court petitions, the state must submit a preliminary response to any petition filed against it. The preliminary response is a general reply to the arguments in the petition. The petition and the preliminary response serve as the basis for a preliminary hearing in court on the matter.
In the case of the petitions against the Winograd Committee and for a state commission of inquiry, the court convened on October 3 to decide whether to close the case immediately or grant the petitioners' preliminary requests.
The two common requests are for an interim injunction, preventing the state from continuing its implementation of the action which has been challenged in the petition, or a show-cause order, which lifts the case beyond the preliminary stage by obliging the state to present a more detailed argument and include a signed affidavit from a relevant government official attesting to the facts presented in the state's more detailed brief.
If the court issues a show-cause order, it is a sign that the petitioners have convinced the court that they have substantial arguments to justify the petition which must be seriously addressed by the state.
In the case of the petitions against the Winograd Committee and on behalf of a state commission of inquiry, the court rejected the petitioners' request for an interim injunction to suspend the Winograd Committee until the court hands down a final ruling on the primary request to abolish it altogether.
But the court did issue a show-cause order, to which the state replied on Wednesday. In other words, the court was convinced that in their written petitions and oral arguments during the preliminary hearing, the petitioners had convinced the court that the issue required in-depth consideration.
In its decision, the court also indicated that it planned to rule on the matter quickly. Obviously, the longer the Winograd Committee continues its work, the harder it will be for the court to grant the petitions. Thus, the court gave the state only five days to present its detailed arguments and said it would hold the next hearing no later than October 20.
The petitions essentially raise two legal issues: Is the court justified in intervening in this matter, when the law does not specifically oblige the government to appoint a state commission of inquiry under any circumstances? Secondly, was the appointment of a government committee of examination a sufficient move on the government's part to investigate the failures of the second Lebanese War? The court has already ruled that, in theory, it has the right to intervene in a matter involving the government's failure to appoint a state commission of inquiry. In practice, however, it has never done so. It has also stated that it would only do so in "rare and exceptional" cases.
The question is whether this is one of those cases.
According to a key principle of administrative law established by the Supreme Court over the years, no administrative discretion is absolute. Therefore, the court may intervene. On the other hand, the court may not put itself in place of the government and decide on the petition according to whether or not it thinks there ought to be a state commission of inquiry. All the court can do is investigate whether the government's decision was reasonable. It has set up a series of tests to assess the reasonability of an administrative decision and will decide according to the outcome of these tests.
One of the variables that the court must consider is how broad the government's discretion is according to the relevant law. In the case of a state committee of inquiry, it is very broad. The governing legislation, the Committee of Investigations Law, states that the government may appoint a state commission of inquiry, but does not oblige it to.
For this reason, it is hard to imagine that the court will, in the end, side with the petitioners and turn the show-cause order into an absolute order, thus granting their requests. But the High Court has surprised in the past and will surprise again in the future. This might be one of those times.