In the end, the bargain Mazuz struck with Katzav's attorneys was the lesser evil for all sides.
By JERUSALEM POST STAFFaleph A pixellated(photo credit: Channel 10)
The Supreme Court ruling yesterday that upheld the plea bargain for former president Moshe Katsav should not have surprised anyone. There was almost no other plausible outcome to the five-justice panel's deliberations, nor was there any other option that even the dissenting justices would have preferred.
The High Court's judicial activism - said by some to be unparalleled internationally - has manifested itself in challenging the legislature's prerogatives and, especially in the past two decades, frequently stepped on the prosecution's toes, in particular regarding its right to decide whom it can indict. To have now disqualified and thus essentially branded Attorney-General Menahem Mazuz's deal legally unreasonable would have invited another onslaught from Justice Minister Daniel Friedmann, who is already engaged in a crusade to curb perceived court excesses.
Any other decision by the court would also have constituted an undesirable precedent (even from its own vantage point). It would have marked the first time in which the High Court canceled a prosecution decision that had been reached on the grounds that the case against the defendant could not be proven, given insufficient evidence.
As soon as Mazuz confessed that he lacked the corroborative infrastructure on which to base a rape case, Katsav was off the most damaging hook. Even if the High Court had overturned Mazuz's deal and forced him to try Katsav on two counts of rape (as included in Mazuz's preliminary indictment), Katsav stood a good chance of beating the rap because the prosecution itself had admitted its case was shaky.
Thus the court on Tuesday could either have upheld the bargain or it could have sent Katsav to a trial from which he would have emerged with a result not very different from what the deal pre-arranged.
The clue to this assessment resides in what the two dissenters - Supreme Court President Dorit Beinisch and Justice Edmund Levy - requested. Even though they knew they were taking no risks, since their opinions were in the minority and would not be acted upon, they refrained from entering in the record the suggestion that the plea bargain be disqualified and that Mazuz be ordered to try Katzav. They opted instead for the relatively mild demand that the attorney-general "reexamine" his position.
The reluctance to demand prosecution on the most severe charges is all the more telling in view of previous instances in which the court did order high-profile trials after prosecutorial dithering or opposition (though never on the grounds of deficient evidence). Under the sway of Aharon Barak - Beinisch's predecessor and mentor - the court compelled the prosecution to try defendants in several such cases.
It overturned the prosecution's decision not to try the country's top bankers in the 1983-84 stock-manipulation scandal, Col. Yehuda Meir regarding early first-intifada incidents, then-religious affairs minister Avner Shaki on fraud charges and then-police inspector-general Rafi Peled on corruption charges.
Had the far more vulnerable Beinisch court dared go where even Barak had feared to tread, and rejected a plea bargain based on insufficient evidence, a court accused of ascribing to itself the authority of a super-legislature would have installed itself as a super-prosecution as well.
This was an obvious non-starter, particularly in view of the fact that the panel was unanimous in judging that there was no justification to try Katsav on rape accusations leveled by "Aleph" from the president's office. What remained were indecent acts charged by another "Aleph," from the Tourism Ministry.
Hence it is safe to assume that even Beinisch wasn't too upset to find herself in the minority on this case. She could then compose her none-too-harsh opinion safely and at the same time score public opinion points by appearing to side with popular outrage. This is likely to improve her image in the ongoing battle with Friedmann.
In the end, the bargain Mazuz struck with Katzav's attorneys was the lesser evil for all sides, though clearly justice was hardly served. No side claims the truth came out. Indeed, all assert the reverse. Katsav insists he was falsely accused and his alleged victims say he got off too lightly. In that sense, this unavoidable deal blurs the truth rather than exposes it.
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