'Procedural safeguards' are everything

When the state comptroller relates to the PM as a potential criminal, we have reason to lament.

By YOSEF (TOMMY) LAPID
Lindenstrauss AJ 298.88 (photo credit: Ariel Jerozolimski [file])
Lindenstrauss AJ 298.88
(photo credit: Ariel Jerozolimski [file])
'The history of liberty has largely been the history of the observance of procedural safeguards," wrote the celebrated American Jewish Supreme Court justice Felix Frankfurter. While I am aware that this statement may be a bit overly legalistic for the average citizen who does not have a background in law, it is essential in order to understand how seriously the current mayhem is undermining the governmental system and the fundamentals of democracy. An enlightened state acts according to frameworks set out in law, and according to procedures binding upon the agencies acting on behalf and in the name of the governmental authorities. It is not happenstance that a controversy is triggered when the High Court of Justice abrogates a law that the Knesset legislated. The Knesset is averse to any abridgment of its sovereignty as the country's legislature. When the Knesset steps on the toes of the legal system, as for example when a Knesset committee refuses to strip a Knesset member of his immunity, thereby preventing him from being committed to trial, it awakens doubts among the public concerning the Knesset's behavior. When the governor of the Bank of Israel determines the interest rate, contrary to the calculations of the treasury, it leads to a debate over who is really determining the government's monetary policy. But cases such as these are rare; and up to now the public and governmental branches have always known who is authorized to overstep the authority of another governmental branch, and who is not. But when citizens cannot rely on the existence of frameworks that determine the authority of governmental bodies, they lose their trust in the system, and this is a slippery slope on the way to anarchy. THAT IS exactly what is happening right now. When Attorney-General Menahem Mazuz refuses to represent State Comptroller Micha Lindenstrauss before the High Court of Justice because he takes exception to the state comptroller's behavior, and when the Knesset's legal adviser refuses to represent the chair of the State Control Committee before the High Court of Justice, we are facing a state of confusion that awakens doubts regarding the quality of our government. When the chair of the State Control Committee declares, "The Knesset is the Knesset and the High Court of Justice is the High Court of Justice," he is not talking about the separation of powers, but about his own right to break the law without judicial control. When the state comptroller relates to the prime minister as if he were a potential criminal and the prime minister relates to the state comptroller as if he were a menace to society, the media have a field day, but ordinary citizens have reason for lament, because their faith in the quality of their government is being severely undermined. The one responsible for this madness is none other than the state comptroller, who has done precisely what branches of government must never do: Instead of monitoring the government's actions and criticizing what it does, the state comptroller has stepped into the shoes of the government and is trying to run the country in place of the prime minister. THE UNPRECEDENTED path that the state comptroller chose to take is to monitor the government's behavior, at the same time telling it what it ought and ought not to do. From that moment, he upset the delicate balance between the powers and violated what justice Frankfurter called "the observance of procedural safeguards." The fact that he later leaked this to the press and embroiled the Knesset, the state prosecution and the High Court of Justice in the matter, just so as to preempt the headlines of the Winograd Commission, added insult to injury. The real crime is that the state comptroller has undermined the procedures that guarantee good government. The author is a former justice minister.