Text: Limor Livnat letter to AG Mazuz - Order halt to negotiations

Dr. Aaron Lerner Date: 5 August 2008

"The authority of the government at this time is to prevent a void in
authority, but not earth shaking dramatic or decisive developments"
Attorney General Elyakim Rubenstein 26.12.00

The following is IMRA's unauthorized translation of the letter sent by MK
Limor Livnat to AG Mazuz:

Jerusalem, 4 August 2008

To: Attorney General Menahem Mazuz, Ministry of Justice, Jerusalem

Re: Instruction to halt diplomatic contacts

The prime minister recently announced in an address to the Nation that he
intends to resign from his position upon the election of a new chairman of
the Kadima Party this coming September. Upon the announcement of the prime
minister, the government of Israel became, in practice, - if not also
strictly according to law - a transitional government. This fact, that is
clear to all, was recently expressed via the media both by senior academics
such as Prof. Suzy Navot and Prof. Yechezkiel Dror and also by such media
figures as journalist Nachum Barnea. Despite this, the prime minister added
and said in his address, that it is his intention to continue and carry out
diplomatic negotiations both with Syria, where it is clear that the focus of
the talks is the transfer of the Golan Heights, as well as with the
Palestinian Authority, where the focus of the talks includes the division of
Jerusalem.

The Supreme Court set in a series of decisions, that when a prime minister
resigns from office, the government and its ministers are to act with the
reserve appropriate for the standing of a retiring government, and to act
only on pressing matters. This position is also set explicitly in Basic
Law: Government both by the legal tradition and by the principle of
reasonableness. Such, for example, the Honorable President Barak set in
H.C. 3123/99 Hilman v. Minister for Internal Security, Judgment NunHeh(2)
455, that a resigned prime minister and the ministers in his government must
act with proper reserve of the status of an exiting government, while at the
same time, they must insure stability and continuity. President Barak added
and set that the scope of reasonableness of the resigning prime minister and
of the members of his government, is narrower than the scope of
reasonableness of the prime minister and a government that is normally
serving. The reason for this is that it is upon the resigning prime
minister and the members of his government to take into account the special
factor - a factor that a government usually doesn't have to consider - and
that is the purpose of the existence and the source of authority of a
transitional government: activities whose being carried out are essential
for the assurance of stability and continuity. This basic need does not
exist in the case under discussion. It should be noted that Judge Turkel
even objected to this position (in a minority opinion) in that decision, and
set that the greatest possible need must exist in order for diplomatic
contacts to take place during the period of a transitional government.

Also in H.C. 8815/05 Lindenstein Et. Al. vs. Speigal Et. Al. it was set
that the special nature of the transitional government requires reserve and
self control in the exercise of authority in matters that are not of special
urgency, where it is set that is needed "a delicate balance between the
obligation to act where it is necessary to act, and the obligation to
maintain reserve and self control in exercising state authority, given the
special nature of the government during the transition period." The court
returned to this position in its ruling in H. C. 2453/05 Israeli Doctors
Association Et. Al. vs. Attorney General Et. Al.. Attorney General Elyakim
Rubenstein , set in a memorandum on 26.12.00 that it would be inappropriate
for the government at its end to engage in diplomatic negotiations when it
is not regarding vital and urgent purposes, writing: "there is a good
question relating to election eve regarding the reasonableness of the use of
authority, without, forefend, wishing to impair, when the prime minister
resigns and waits to receive the endorsement of the public once again. and
when the operative meaning of the agreement is the removal of communities, a
dramatic change cutting into the living body of Jerusalem, etc. It is a
reasonable assumption, that such sensitive matters require exceptional care,
if it is even at all possible to reach agreements on them. The legal front
is not the central one here, but it clearly expresses that the government be
trustee of the public, the trustee of the entire public, the trustee of the
entire State, and as such carefully weigh heavy decisions - that divide the
nation - that are taken during the interim period, without connection as to
if the government will return after the elections or not. I do not want to
put barriers before the efforts for peace, but it is my obligation to say
what I have said." The attorney general added and set, that "good faith and
a proper approach require, during an election period, just as with
appointments, strict care. The authority of the government at this time is
to prevent a void in authority, but not earth shaking dramatic or decisive
developments, but instead only unavoidable matters, such as the operation of
the IDF and defense in times of war." These explicit words apply also to
our matter.

The negotiations with Syria and the negotiation with the Palestinians
Authority have been carried out for a long period by various Israeli
governments. We are talking about processes whose outcomes may have a major
influence on the future of the State for many years to come. The
continuation of these contacts during the short period remaining until the
replacement of the current government varies from the area of
reasonableness. There is no critical public need for the carrying out of
negotiations during the short period remaining for this government, and it
is prohibited that such important and critical negotiations be carried out
by a reigning prime minister, when its very existence and what is said
during its course may tie the hands of the next prime minister and
government ministers. The self control in the exercise of the authority of
the regime require the prime minister not to tie the hands of the next
government and not to hurriedly complete complicated processes that have
been underway in one form or another for years.

In light of the above, you are requested to instruct the prime minister to
halt the carrying out of diplomatic contacts with the Palestinian Authority
and with Syria (excepting vital and urgent matters) until the formation of a
new government, just as was the practice for past governments.

Best regards,
MK Limor Livnat