Analysis: Issue creates tension between court, state

Gilad Schalit 248.88 (photo credit: Courtesy)
Gilad Schalit 248.88
(photo credit: Courtesy)
The petition by kidnapped soldier Gilad Schalit's parents to reconsider the cease-fire with Hamas so long as their son remains captive created unprecedented tension between the State Attorney's Office and the High Court of Justice over the highly delicate issue of justiciability. The High Court has rarely, if ever, intervened in matters purely to do with foreign policy or security. But it has always reserved the right to do so if a legal issue is involved. In the Schalit case, the petitioners claimed there was. The state countered that the matter was for the government to decide. The petitioners asked the High Court to order the security cabinet to reconsider its decision to approve the cease-fire with Hamas on the grounds that the ministers had been misled. The prime minister, foreign minister and defense minister had failed to tell their colleagues that Schalit was not part of the deal. "Approval that is given on the basis of false information is not valid," wrote attorneys Eldad Yaniv, Ariel Bendor and Sharon Stein. In order to prove that the petitioners were wrong, the state allowed the court to read the classified minutes of the security cabinet meeting, hoping that the justices would be persuaded to reject the petition out of hand. But the court was not persuaded. There are at least two possible reasons for this. One might be that out of compassion for the suffering family, the justices did not want to simply dismiss the petition without giving them their day in court. The second, and more likely reason, is that the minutes of the security cabinet meeting did not, on the face of it, convince them that the Schalits did not have a case. Hoping to avoid ruling on the petition, the justices suggested that Schalit's father, Noam, meet with Amos Gilad, head of the Defense Ministry's Security-Diplomatic Bureau. Perhaps Gilad could convince Schalit to withdraw the petition. The problem was that Schalit's lawyers insisted that the status at the crossing points be frozen while Schalit and Gilad met. They said they were afraid of a fait accompli that would render their petition irrelevant. There were two ways to achieve a freeze. One was to issue a temporary injunction ordering the state to freeze the situation. The other was to obtain the state's consent. But the state's representative, attorney Osnat Mandel, head of the High Court Petition Section of the State Attorney's Office, refused to cooperate with the justices. She also double dared them to issue a temporary injunction, warning of the possible consequences of the freeze on an international agreement involving not only Hamas, but also Egypt. The court, unwilling to issue a temporary injunction, fudged the matter. It extended the state's consent to a two-hour suspension of the situation at the border crossings for 14 more hours, even though the state clearly hadn't consented to the extension. On Monday, the contest between the court and the state resumed. The Schalits' lawyers announced that they had not been persuaded by Amos Gilad and insisted that their petition be heard. Now, the court again faced two choices. One was to reject the petition out of hand, without hearing the petitioners' case in depth. The other was to hear the case as if a show-cause order had been issued and the sides could discuss the petition in depth. In the meantime, however, the situation would have to be frozen again. The head of the panel, Justice Edmond Levy, asked Mandel to agree to continue the hearing as if a show-cause order had already been issued. Once again, Mandel refused, saying the state could not agree to a show-cause order on a matter that was "so security-centered, so foreign relations centered." Levy was noticeably frustrated by Mandel's response. "We hoped and expected that you would agree to this suggestion," he said. "We are ready to hear and decide on the petition." But Mandel did not change her mind. If the court was willing to freeze the situation at the border crossings and endanger the cease-fire agreement by issuing a temporary injunction while it heard the petition in depth again, it would have to do so on its own responsibility. This was too much for the court. It backed down and rejected the Schalit petition out of hand.