Legal Affairs: The public interest - what's that?

The High Court this week upheld the Katsav-Mazuz plea bargain, but the case nevertheless underscores the ongoing battle between the bench and the state over who really rules the roost.

high court 224.88 (photo credit: Ariel Jerozolimski [file])
high court 224.88
(photo credit: Ariel Jerozolimski [file])
Leaving aside, for the moment, the legal implications of this week's High Court verdict regarding former president Moshe Katsav, the ruling also made clear that Supreme Court President Dorit Beinisch has not been intimidated by Justice Minister Daniel Friedmann. Friedmann did not like the idea that the court had taken upon itself the power to review Attorney-General Menahem Mazuz's decision to reach a plea bargain with Katsav. For him, it was just one more example, though a particularly irritating one, of the encroachment of the court on territory belonging to the other branches of government, in this case, the executive. In fact, he was so incensed that he considered passing legislation prohibiting the High Court from hearing petitions challenging decisions of the attorney-general on matters such as opening or closing criminal files or negotiating plea bargains. Beinisch was not deterred by the threat, and voted to overturn Mazuz's decision. Whether or not one agrees with the conclusion she reached, all it takes is a thorough reading of her opinion to see that it is well thought out and serious (though not well- written and badly in need of editing), and poses a genuine challenge to Mazuz's decision. In fact, it is easy to argue that the Katsav affair and the extreme turnabout in the attorney-general's thinking between January 2007 - when he announced that the prosecution was considering indicting the former president for serious sex crimes including rape - and the actual decision five months later, positively crying out for independent review. If this is so, who better to conduct that review than a responsible, independent institution manned by talented and experienced jurists? And indeed, Beinisch was not in the minority in thinking that Mazuz had made serious mistakes in his handling of the case. All four of her colleagues on the panel, including those who eventually backed the attorney-general's decision, concurred. Even though the court ultimately did not change the decision, it at least was exposed to a very thorough critique. ONE ELEMENT in the ongoing public debate over the extent of the High Court's powers was very much the focus of the decision in the Katsav affair. That question is whether the justices rule in accordance with the law, as its supporters insist, or whether they rule according to their own subjective whims and value systems with only a slight nod to the written law, as their detractors maintain. The pivotal question in the case was whether or not it was in the public interest to reach a plea bargain, in which the charges against Katsav would be based on compromise, no evidence would be heard and no witnesses questioned, or to hold a criminal trial where the sides would disclose in public every last intimate detail of the relations between the former president and the women who complained against him. According to Article 62 (a) of the Criminal Procedures Law, "If a prosecutor who has been given investigative material determines that the evidence is sufficient to indict someone, he will put him on trial, unless he believes the trial would not be of public interest." The law, however, does not elaborate on what the public interest is. Judicial rulings have given substance to the term and expanded the definition far beyond its literal meaning. Had they not done so, it would have been impossible to apply the condition. In justifying the plea bargain, the state took into account the factor of public interest, and gave its reasons for maintaining that it was best served by signing a plea bargain with the defendant. Beinisch disagreed, and provided a series of arguments for reaching the opposite conclusion. Had she had her way, the plea bargain would have been cancelled. As it was, she was in the minority, although no other justice, except Edmond Levy, who was also in the minority, went into such depth on this question. For its part, the public may read the arguments put forward by the state and Beinisch and decide for itself which were the more persuasive. Whatever the conclusion, there is no question that the exhaustive examination of this crucial issue was a positive contribution towards a more informed understanding of the issues at stake on an extremely controversial matter. This is the kind of clarification Friedmann would like to prevent, if he thought he could get away with it. If Beinisch proved that she would not compromise on her concept of the role of a Supreme Court justice, Justice Edmond Levy proved (not for the first time) that he is the most activist member of the court. While Beinisch did not rule out the possibility of a plea bargain in principle, but only rejected the specific plea bargain that had been negotiated between Mazuz and Katsav's lawyers, Levy ruled that there should be no plea bargain whatsoever, and that the former president should be put on trial. But he went much farther than that. In the last pages of his verdict, in a passionate and articulate statement, he warned the Israeli population about the growing corruption among political leaders and the fact that at a time when it is vital to strengthen the law enforcement authorities, some - clearly referring to Friedmann - were doing their utmost to weaken those very same authorities. "And so," he wrote, "in the face of this increasing public corruption, we must strengthen the law enforcement system, above all the investigative authorities, the prosecution and the courts, so that they will be able to act without fear or prejudice to uncover crime and put the criminals on trial. But in this area, too, the situation is not encouraging. Not only is the strengthening of this system far from the hearts of senior officials in the legislature and executive branches, but it seems that lately they are working tirelessly, as if seized by madness, to bring about the delegitimization of the judicial system. At the same time, they try to make their actions look good by dressing them up in hollow slogans, such as the need for separation of powers. "On this backdrop, I found myself wondering how one can take seriously their claim of the desirability of separation of powers, when the political system has recently succeeded in obtaining a role and influence in the process of appointing the attorney-general and is already initiating legislation to increase political involvement in the appointment of judges and even restricting the prerogatives of the Supreme Court, apparently in order to reduce its ability to review acts of government. "And if we need to provide an example of this trend, it is enough to point out that while the court has been working hard at writing the verdict regarding the petitions at hand, someone has been letting the public know that he is considering initiating legislation to prohibit the High Court from intervening in the decisions of the attorney-general. I have only two things to say about this. "One, that this is a vulgar and unprecedented threat against the judicial system, aimed, it seems, at influencing the court's decisions. Two, that this kind of behavior is a sure-fire recipe for inflicting mortal damage to democracy, defiling government and guaranteeing ongoing corruption."