Background: A difference of opinion between branches, not a personal war

By DAN IZENBERG
July 22, 2007 22:24
4 minute read.

It is obvious that there are often personal undertones, animosities or long-range strategies that play a role in clashes over policy between powerful figures in the leadership of the country. But often the Israeli media tends to accord greater importance to those factors (which, regretfully, are too often the predominant ones) than it does to the issues themselves. This appears to be the case in the dispute that arose over the weekend when Prime Minister Ehud Olmert sharply criticized a High Court of Justice ruling handed down on May 29, ordering the government to reinforce every classroom and auxiliary classroom in all of the primary and secondary schools in Sderot and the Gaza Strip periphery communities. After a number of hearings in court, the dispute between the state and the petitioners boiled down to this: The state maintained that schoolchildren from grades four to the end of high school would be sufficiently safe if the state reinforced the ceilings in the common space (primarily hallways) between their classrooms. The petitioners argued that this solution did not provide enough safety and demanded that the state reinforce the ceilings in every classroom and auxiliary room (such as laboratories, libraries and special-studies classrooms) throughout the primary and secondary school system. The court sided with the petitioners. In a unanimous decision, Supreme Court President Dorit Beinisch and Justices Salim Joubran and Dvora Berliner said the state's proposal did not provide sufficient safety and, because of the threat to the residents of Sderot, rejected the state's claim that this solution was too costly (the estimated price was NIS 192 million). "There is no escaping the fact that the state's decision deviates from the range of reasonableness," the justices wrote. Accordingly, the court ruled to grant a final ruling "instructing the state to fully fortify all the classrooms in all the schools in Sderot and the other communities in the Gaza periphery, and not according to the system of 'protected spaces.' The state must complete the fortification of the classrooms by the beginning of the 2007-08 school year. The auxiliary classrooms in these schools must also be fully fortified, and not according to the 'protected spaces.' The auxiliary classrooms will be fully fortified." Last week, the Supreme Court rejected the state's appeal for another hearing of the petition before an expanded panel of justices. The closing of this last opportunity to overturn the court's decision was probably what led Olmert to unleash his attack over the weekend during a talk at Kibbutz Yifat. "It isn't the court that will decide where and how much fortification we will provide," said Olmert. "It is intolerable and inconceivable. This is a decision for the government to make. And if the government errs, let the people change it." Whether he was right or wrong, Olmert certainly raised a legitimate argument, and one that in various forms has been tossed around for a long time. It is more than a little far-fetched to say that this opinion was a declaration of war on the Supreme Court - though at least one thing Olmert has done during his tenure as prime minister, the appointment of Daniel Friedmann as justice minister, could certainly be construed that way. It is clear that the government, along with the Knesset, is responsible for the allocation of the government's resources. It is the government, under the oversight of the Knesset, that determines national priorities and, therefore, the amount of money to be allocated to each need. However, the court did not question the prerogative of the government to do so. It maintained, as it has for many years, especially during the years of Beinisch's predecessor, Aharon Barak, that while it could not substitute its own choice of action for the government's, it could overrule the government's choice if it concluded that it was "extremely unreasonable." That is what Beinisch and her colleagues did in the case of the Sderot petition. They determined that the government's decision was extremely unreasonable. But they did not reach that conclusion on subjective grounds. They did it on the basis of data provided by government security experts. The question the court had to consider was how viable was the solution of "protected spaces" offered by the government. The warning system (known by the code name "Red Dawn") goes off 15-20 seconds before a Kassam lands. In other words, students have 15-20 seconds to get out of their classrooms and into the fortified hallways before a possible explosion. The court demanded quantitative proof that the evacuation could be done in that amount of time. The government tested the system in 152 classrooms throughout primary and secondary schools. According to the results, 57 percent of the schoolchildren were able to reach the protected spaces within 15 seconds and another 23% in up to 19 seconds. According to the test, 20% could not make it out in time. The court ruled that the latter figure was too high and, therefore, the system was unreasonable and unacceptable. Whatever one makes of this data and the conflicting interpretations given to it by Olmert and the three justices, it cannot be said either opinion is illegitimate and was given for reasons having nothing to do with the issue at hand. The problem is not the difference of opinions between the court and the government. The problem is whether Olmert will operate according to his own opinion and ignore the court ruling. This would violate the rule of law.


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