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Tuesday, November 2, 2004
Israeli Supreme Court: OK for PM to fire ministers to win cabinet vote

Israeli Supreme Court: OK for PM to fire ministers to win cabinet vote

[IMRA: The ruling undermines the argument of ministers who claim they are
staying so that they can vote against withdrawal when, in accordance with
the disengagement plan, a vote is taken on withdrawal from groups of
settlements, since PM Sharon can simply fire as many ministers as necessary
to win the retreat vote.]

Apolitical justice helped the PM twice over
By Yuval Yoaz Haaretz 2 November 2004
www.haaretz.com/hasen/spages/496597.html

Political considerations are sufficient, ruled the justices, when the prime
minister wants to fire a minister

It was, of course, only the hand of fate that resulted in publication last
Tuesday of the High Court of Justice's reasons for rejecting the petitions
against the June 4 firing of cabinet ministers Benny Elon and Avigdor
Lieberman - the very day of the crucial Knesset vote on the disengagement
plan, a day when the air was thick with Prime Minister Ariel Sharon's threat
to sack additional ministers who dared to vote against the plan; a threat
that, as Uzi Landau knows, was carried out after the vote; a day of debate
over the PM's and minister's attitude toward a key political process.

Court justices do not interfere in political matters and certainly do not
choose sides in an emotional political confrontation unfolding in real time
in the Knesset, just up the road from the Supreme Court building.

Thus when Supreme Court President, Justice Aharon Barak, wrote in his ruling
that "Israel is a parliamentary democracy, the Knesset is the legislative
body and the representative institution chosen by the authority," there must
be no suspicion that the message behind this statement is that the Israeli
system of rule does not require a referendum.

Or when wrote Barak, "the joint responsibility of the government before the
Knesset is based on the status of every one of the ministers that compose
it," and that "the government's decisions are those of the whole government,
meaning decisions of the various ministers that compose it," he was
certainly not intending to hint of a lack of legitimacy in the threats by
cabinet ministers to vote against a decision of the government in which they
are part and party.

The justices are not in the habit of political interference, and even
without any connection to the timing, which at the Supreme Court is always
arbitrary, this ruling by an expanded panel of seven justices offers some
rules regarding the considerations that should guide the prime minister in
his treatment of ministers who disagree with the diplomatic initiatives he
is spearheading. Thus in one context, the disengagement plan has already
entered history - legal history, at least.

Levy's outrage

On Friday, June 4, 2004, two days before the cabinet session at which the
disengagement plan was approved, the prime minister fired ministers Elon and
Lieberman due to their declarations that they would vote against the plan.
Throughout the hours of Friday morning, Elon pulled a few evasive tricks to
avoid personally receiving the letter of dismissal. In the end, the
dismissal went into effect on Sunday afternoon, during the cabinet meeting,
and when the plan was raised for a vote (and approved), the two were no
longer part of the cabinet.

Five petitions were submitted to the High Court against Sharon's decision to
fire the two, one petition being filed by Elon himself. Duty Justice Edmond
Levy deliberated over the petitions while the government convened in the
Prime Minister's Office, on the other side of the road, and suggested to the
attorney general's representative that the government postpone its meeting
to allow for the clarification of the legality of the firings. The
suggestion was relayed to Attorney General Manny Mazuz, but he declined it,
and Levy, who actually refrained from issuing an interim order on the
matter, later wrote an irate ruling against Sharon's behavior.

The petitions were transferred to a panel of seven justices, who decided to
reject them. Now, with the publication of the reasons, four and a half
months later, it turns out that although the seven concur on the rejection
of the petitions, they are divided on the reasons for the rejection.

On the one hand, Barak and most of the panel ruled that "the prime minister
has the authority to dismiss a minister from his position if he was
convinced that this would contribute to the government's ability to function
properly as the executive authority of the country, and to realize the
political goals before it," and that the prime minister can fire ministers
even before a crucial government vote and do so in order to influence its
outcome.

Justices Levy and Yaacov Turkel, on the other hand, felt otherwise. "The
firings were legal, but not moral," wrote Turkel, explaining that "the prime
minister was entitled to fire them, but it would have been appropriate not
to do so."

Levy faced off directly against Barak.

"Logic dictates," wrote Levy, "that the decision to transfer ministers from
their positions on the grounds that their worldview will make it difficult
for the government to implement its policy cannot be made on the eve of a
government vote on that policy, but rather only thereafter."

Levy wrote in defense of Elon and Lieberman, and leveled criticism at Sharon
that could sound political, were it not written by a justice. "No claims
were raised against Elon and Lieberman regarding their personal behavior,
nor reservations against the fulfillment of their functions as ministers,"
wrote Levy.

"On the contrary, their stances on a withdrawal from territories held by
Israel were known to the prime minister from the day his government was
established, so it is clear that these ministers did not violate any
coalition agreement.

"The abyss that opened between the two ministers and the prime minister was
caused by the latter's decision to adopt a new political line, different
from the one that stood at the foundation of the coalition agreement, and
the intention to promote the plan he formulated, which is known as the
disengagement plan."

Levy continued, declaring, "It is the ministers' right, if not their
obligation, to express their opinions in the government and give expression
to the views of their constituents, for otherwise government ministers would
only be yes-men of the prime minister, people who are always willing to set
aside their opinions in favor of his."

"The new view of the prime minister," stressed Levy, "is, with all due
respect, his view, and remains such as long as it has not been adopted by
the government."

Levy called on the Knesset to change the Basic Law so that Knesset approval
would be required for the firing of a minister, and not only for his
appointment.

The good of the coalition

Most of the justices in the panel, including Eliahu Mazza, Dorit Beinisch,
and Ayala Procaccia, support Barak's reasoning. Mazza feels that Barak's
formula, that the prime minister has the authority to remove a minister from
his position if convinced that this would promote the government's ability
to function and achieve its political goals on the grounds that his or her
worldview will make it difficult for the government to implement its policy,
allows the prime minister to weigh "political" considerations too, including
the need to maintain a stable coalition, as well as preventing a minister
from causing "irreparable national damage," or from contributing to the
government's "making a decision that would be ruinous to the state."

Barak is cautious about minimizing the importance of the ministers too much.

"The government and its ministers are not irrelevant to the prime minister,"
wrote Barak, adding, "A minister should not be removed from his position
over a triviality."

Still, the bottom line of the decision is that the prime minister can sack a
minister for his political positions and for his opposition to a political
process being led by the prime minister and that a minister can be fired
even before a crucial government vote. The prime minister is not even bound
by the government guidelines when he exercises his authority to sack
ministers.

Procaccia was apparently shocked at the expansiveness with which Barak
grants the prime minister the authority to fire ministers for political
considerations and noted that "the irregularity and uniqueness of this
authority to dismiss [ministers] dictates that it be exercised only very
rarely."

Justice Mishael Cheshin, as is his wont, has an independent stand. He stated
that the petitions should be rejected since the relationship between the
prime minister and the ministers are not the court's business.

"The prime minister's judgment is wandering in the stratosphere," wrote
Cheshin, "where the judicial atmosphere is very thin and weak."

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