The Movement for Quality Government said over the weekend that it would ask the High Court of Justice for a second hearing before an expanded panel on its petition calling for a state commission of inquiry to replace the Winograd Committee after a seven-justice panel narrowly voted to reject it.
Four justices voted against the petition - Deputy Supreme Court President Eliezer Rivlin and Justices Asher Grunis, Salim Joubran and Esther Hayut. Three justices, Ayala Procaccia, Miriam Na'or and Elyakim Rubinstein, voted to accept the petition.
Another petition calling for a state commission of inquiry, submitted by the Ometz watchdog organization, was also turned down.
"[The petitioners did not] prove that there is cause for the court to intervene in the cabinet's decision," Rivlin wrote in the ruling. "The cabinet was authorized to appoint a government committee of examination in order to look into the events of the war [in the North]... Furthermore, we cannot determine that the government's decision deviated from the domain of reasonableness."
After a month of deliberation, and despite demands from the public for a state committee of inquiry to examine the government's failures during the second Lebanese war, the cabinet decided on September 17 to establish a government committee of examination.
There are a number of differences between the two types of investigations. For example, the president of the Supreme Court chooses the members of a state commission while the cabinet appoints the members of a government committee. A state commission in authorized to issue warnings to those suspected of responsibility for failures, while the law establishing the government committee makes no such provision. A state commission is authorized to subpoena witnesses while the government committee only has that power if the government appoints a judge to head it.
In appointing a retired Tel Aviv District Court president to head the examination committee, the cabinet provided that authority.
The Movement for Quality Government and Ometz said the cabinet was obliged by law to appoint a state commission, that ministers could not appoint the members of a committee which would investigate them because this created a conflict of interests, and that the decision to do so violated administrative law because it was unreasonable to appoint a government committee when it could appoint a state commission.
Rivlin rejected all these arguments. He said that there was nothing in the law that forced the cabinet to choose one investigating instrument over another and that there were many cases, such as that of the attorney-general, where the cabinet appointed an official who then had the power to investigate those who appointed him. He also maintained that in reality, there was little difference between the powers of a state commission and the Winograd Committee because the cabinet had provided the latter with extended powers, in part by appointing a judge as its head.
Procaccia, who wrote the main dissenting opinion, said the cabinet was not free to determine which type of committee it would appoint. State commissions and government committees of examination were established by law for different purposes, she said. Government committees were designated to investigate narrower issues that involved alleged failures in the actions of one or two ministries, while a state commission of inquiry was meant to investigate failures of national importance, involving a broad spectrum of public officials and government systems.
Procaccia also maintained that in appointing a government committee the cabinet was, indeed, guilty of a conflict of interests. She differentiated between the ministerial and personal responsibilities of the ministers. It was possible, she wrote, that a government committee could investigate and hold a minister accountable for systemic failures in his ministry in cases where the minister had nothing to do with them directly. But how could the committee members be expected to determine that the minister who had appointed them ought to be held personally responsible for the failure, without engaging in a conflict of interests? she asked.
Finally, Procaccia argued that even if the above arguments were not sufficient to prove that the appointment of the Winograd Committee was in violation of the law, they were strong enough to prove that the appointment was a violation of administrative law, since it was unreasonable to appoint a government committee of examination when there was an obviously better alternative, i.e., a state commission.
The Movement for Quality Government issued a statement on Friday saying it was "shameful that such an important decision was handed down in secret without holding a hearing in the presence of the parties, without a reading in court and without notifying the media in advance. It looks like the justices are ashamed of what they wrote."