Dan Izenberg, THE JERUSALEM POST Jul. 25, 2007
The state and former President Moshe Katsav's lawyers failed on Wednesday to convince a panel of five High Court justices that the decision to reach a plea bargain including watered-down charges against him was a reasonable one.
The court issued a show-cause order shifting the onus of proof from the petitioners to the state and demanding that it explain why it should not cancel the plea bargain agreement, why it did not include the "first Aleph" in the final draft of the indictment and why it did not grant all the women who had testified against Katsav a full hearing so that they could present arguments against the decision to reach a plea bargain.
The court hearings on the case will resume in about a month. In the first round of hearings, which ended on Wednesday, the petitioners had to persuade the court that they had a serious case which should be heard in depth. In the second round, the state will be on the defensive, and will have to justify its decisions to agree to the plea bargain and the other challenges rose by the petitioners. The state's response will be accompanied by a sworn affidavit by a key figure involved in the decision, presumably
Attorney-General Menahem Mazuz, who signed the plea bargain for the state.
In the meantime, the state may not file the indictment and the plea bargain in court, as it had intended, and will have to wait for the court's final ruling on the petitions. The court gave the state 21 days to reply to the show-cause order and the petitioners 10 days after that to respond to the state's arguments.
Outside in the Supreme Court hall following the court's decision, the lawyers representing the petitioners were jubilant. "We got exactly what we wanted," said Attorney Yehuda Ressler, who, together with Attorney Kinneret Barashi, represented the "first Aleph." In the original indictment, which Mazuz described to the public on January 23, the state had accused Katsav of conducting forbidden intercourse with consent by exploiting his authority and sexual harassment. In the final draft, the "first Aleph" was not even mentioned.
"The court has given us the chance to continue fighting to bring justice to light," said Barashi. "The court's decision to issue a show-cause order is an important one."
"The court rolled the hot potato back to the attorney-general and placed the burden of persuasion on his shoulders," said Attorney Eliad Shraga, head of the Movement for Quality Government (MQG). "The state failed to convince the court that its decision was reasonable, and, in my opinion, it won't be able to do so in the future. It is impossible to explain how an indictment that was so grave and bombastic could be reduced to an anorexic one which included hugs and strokes for the accused."
Attorney Tziona Koenig-Yair, the executive director of The Women's Network, which petitioned together with MQG, described the ruling as "an enormous accomplishment." She pointed out that there have been only three previous cases in which the court rejected a decision made by the attorney-general to close a criminal file without charges. "The decision reaffirms our faith in the Supreme Court," she said.
Meanwhile, Attorney Shai Nitzan, the state's senior representative in the case, told reporters that the court's decision was "predictable" and that he had no complaints about it. "This is a very sensitive and complex case," he added.
As noted above, the case is far from over and the petitioners have not won a total victory. It is possible that in the end, the court will decide that Mazuz's decision was not "outside the boundaries of reasonableness" - the legal criteria for determining whether or not the court may overturn the attorney general's decision.
Supreme Court President Dorit Beinisch repeatedly stressed that she did not understand the huge difference between the January draft indictment and the final indictment in June. That is not a small thing, considering that Nitzan and Katsav's lawyer, Avigdor Feldman, spent a total of close to 10 hours trying to explain to her and the other justices why.
It is possible that the court already agrees with the state's claim that it should not intervene in the case, but feels that the matter is so serious that it would convey the wrong message if it rejected the petitions without a serious and exhaustive discussion.
But it is also possible that Nitzan and Feldman genuinely failed to convince the court in the 10 hours they had at their disposal. If the latter is true, it is hard to imagine what more ammunition they have to throw in to the court battle in the second round of hearings.