Despite calls to stop talks before Olmert's departure, Mazuz says transitional government not limited.
By DAN IZENBERGolmert knesset 224(photo credit: Ariel Jerozolimksi )
Basing himself on a precedent-setting High Court ruling from 2001, Attorney-General Menahem Mazuz informed Likud MK Limor Livnat on Sunday that he would not order the government to stop negotiating with Syria.
"When it comes to diplomatic negotiations, the dominant elements in the question of the proper balance that should be struck between the requirement of a caretaker government to take action and the requirement to act with restraint, are political and the decision must be made within the political discourse," Mazuz wrote Livnat, quoting from the verdict handed down by a panel of seven justices on January 25, 2001.
In the High Court verdict, four petitions had been filed during the election campaign to choose a new prime minister after Prime Minister Ehud Barak resigned towards the end of the year 2000. The petitioners called on the High Court to order Barak to stop negotiating with the Palestinian Authority and its president, Yasser Arafat, over a comprehensive peace agreement on the grounds that Barak was head of a caretaker government which did not have the confidence of the Knesset.
In his verdict, Aharon Barak presented the relevant text of the Basic Law: Government and continued, "Are there any formal constraints on the ministers? The answer is no. There is nothing in the law that limits the formal power of a prime minister who has resigned or his ministers, to nothing more than routine acts [of government.]"
Barak also wrote that a committee of experts headed by Justice Zvi Berenson had concluded that a caretaker government should not be restricted to routine activities. Barak added that had the Knesset wanted to change this approach, it could have done so when it rewrote the Basic Law: Government. In fact, the government has rewritten the law twice - once to include the direct election of prime ministers and a second time to cancel that system. Despite this conclusion, Barak added that while there was no special doctrine limiting the powers of a caretaker government, "it must act with restraint and proportionality."
Barak wrote that the question of how a caretaker government should act There is not one single answer that applies to how a caretaker government should act, Barak continued. It must strike a proper balance between taking action and acting with restraint and each case must be examined on its own merits. In Ehud Barak's case, the government was not acting with extreme unreasonability and therefore the court could not intervene, wrote Aharon Barak. This was particularly true since the government could not sign a peace treaty before bringing it to the Knesset for approval. Nevertheless, added Justice Barak, although the court could not intervene, the public and the Knesset could, if they thought fit to do so.
Although Barak did not say so, in the case of Ehud Barak, the Knesset could have amended the law to prevent him from negotiating with Arafat. As for the public, it could vote him out of office, which, in fact, it did a few days later.
In his ruling on Sunday, Mazuz embraced the High Court ruling. "The rules that were established in that verdict apply in our case as well," he wrote.
"Therefore, I do not see any basis for me to intervene. I might add that this opinion does not constitute a position on the non-legal aspects of the matter which, as the court said, the dominant ones are public and political.
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