A Chronicle of Impotence Foretold (Extract)

By MOSHE NEGBI
Extract from an article in Issue 23, March 3, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Report click here. Ehud Olmert has to go. Despite the ambivalence of the Winograd Commission's judgment of his performance in the Lebanon war, he is clearly unfit for the top job. It is not just a question of his getting his just desserts. No, Olmert has to go out of concern for the country's future. And ensuring that is precisely the public service Judge Winograd and his commission should have performed. The current law on commissions of inquiry was passed in 1968. Before that, commissions were set up according to a 1921 British Mandate statute, under which the government itself appointed the commissions' members. The new Israeli law instituted a dramatic change: It stipulated that whenever an inquiry is of "quintessential public significance," the commission's members should be chosen not by the government but by the president of the Supreme Court. The innovation was based on the assumption that with such burning issues at stake, the commission would invariably need to weigh government and ministerial responsibility, and that if the ministers chose and appointed their own investigators, justice would not be seen to be done. The innovation was a belated victory for Israel's first prime minister, David Ben-Gurion. Ben-Gurion had been incensed at the way a government-appointed commission had "exonerated" former defense minister Pinhas Lavon for an abortive and irresponsible Israeli espionage operation in Egypt in the early1950s and blamed the IDF instead. Ben-Gurion had insisted that issues involving ministerial responsibility be investigated by a judicial body totally independent of the government. When his demand was rejected, he withdrew from public life, defeated and embittered. A few years later, however, the Knesset adopted his position. But the new Israeli law left one critical loophole: The authority to determine whether the subject of an investigation was of "quintessential public significance" remained in government hands. The government that conducted the Second Lebanon War cynically and shamelessly exploited this lacuna to enable Olmert himself to select and appoint the members of the commission that would investigate the government's failings in the war. It comes as no surprise, therefore, that not only Olmert's political rivals, but the bereaved families who paid the price of failure, the fighters who felt those failures on their backs, as well as the vast majority of the public failed to see justice done in the Winograd Report. I am convinced that had the government acted in the letter and spirit of the law and allowed Supreme Court President Dorit Beinish to appoint the commission, justice would have been done and seen. Contributing editor Moshe Negbi, a legal analyst for Israel Radio and lecturer on law and communications at the Hebrew University, has written extensively on Israel's judicial system. Extract from an article in Issue 23, March 3, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.