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Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel*

Published online by Cambridge University Press:  04 July 2014

Yoav Dotan
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Extract

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.

Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.

Type
Research Article
Information
Israel Law Review , Volume 32 , Issue 3 , Summer 1998 , pp. 448 - 474
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1998

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Footnotes

**

Lecturer, Faculty of Law, The Hebrew University of Jerusalem.

References

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7 Israel has no formal written constitution. Judicial review of legislative acts is nevertheless possible under some basic laws (see infra) enacted by the Israeli legislature (the Knesset). The Israeli Supreme Court serves both as the highest Court of Appeal in the country and as the principal jurisdiction for judicial review actions. In this latter function it is called the High Court of Justice (HCJ).

8 I will use interchangeably the terms “pro-majoritarian” and “representative” to present this model. I will also use interchangeably the terms “the political branches” and the “other branches of government” in reference to the executive and the legislature. This terminological use should not be taken to reflect any objection to the fact that the courts themselves are “political” institutions in a broader sense of the term (see Shapiro, M., Law and Politics in the Supreme Court (The Free Press, London, 1964)Google Scholar), or that they may sometimes claim to fulfill a representative function (see infra).

9 I use the term “constitutional courts” to include any court dealing with judicial review of the decisions of the executive or the legislature.

10 Bickel, supra n. 1, at 16–18; Ely, supra n. 1; Ackerman, supra n. 1.

11 Dahl, supra n. 3, at 7, 29–30.

12 Sunstein, C.R., “Interest Groups in American Public Law”, (1985) 38 Stan. L.R. 29–87 CrossRefGoogle Scholar; Michelman, F.I., “Forward: Traces of Self Government”, (1986) 100 Harv. L.R. 4–77 Google Scholar; Farber, D.A. and Frickey, P.P., Law and Public Choice: A Critical Introduction (Chicago U.P., Chicago, 1991).CrossRefGoogle Scholar

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14 I use this term monocentric to indicate a political system which revolves around one central issue, while neglecting other questions.

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16 Arian, A. and Shamir, M., The Elections in Israel — 1988 (Westview Press, 1990).Google Scholar

17 This impression does not change if one examines previous volumes of this series or the volume relating to the 1992 elections ( Arian, A. and Shamir, M., The Elections in Israel — 1992 (State University of New York Press, 1995)Google Scholar).

18 In the 1992 elections the Women's Party (advocating women's rights) won less than 3,000 votes. The Law of the Nature Party (a green movement) won less than 1,800 votes. Other parties which concentrated on socio-economic policies such as the Mortgage Victims Party, Hope Party (of Charlie Biton) also failed to get even close to gaining a seat in the Knesset (source: Central Bureau of Statistics). No such movement has ever succeeded in gaining any representation in the Knesset since the formation of Israel. The 1996 elections were conducted according to a new system (regulated by the new Basic Law: The Government, 1992). The new system allows each voter to have two votes: one for the Prime Minister and one for a party in the Knesset (as opposed to the previous system which allowed only one vote for the Knesset for each voter). The new system could, presumably, weaken the monocentric character of the elections in Israel, since voters can now split their vote and concentrate on, for example, foreign affairs while voting for Prime Minister, but on domestic issues while voting for the Knesset. Nevertheless, the 1996 elections showed hardly any such tendencies. The only notable exception was the (former USSR) immigrants party, Israel B'aliya, which took advantage of the new system to win 8 seats in the 14th Knesset.

19 For a description of these political parties, see S.C. Heilman, “The Orthodox, the Ultra-Orthodox, and the Elections for the Twelfth Knesset, in A. Arian and M. Shamir, supra n. 16, at 135–153. Out of these three parties the NRP is the only one which has officially endorsed a clear right-wing agenda during the last decade. This has indeed weakened its bargaining position, and led the party, for the first time in its history, out of the coalition, when Labour gained power in 1992. However, the NRP never announced that it had completely ruled out any possibility of a coalition with Labour.

20 The religious parties did not lose their hold on the government even in periods when the Likud and Labour cooperated to form a National Unity Government nor even when the religious parties were not officially part of the government. See A. Arian, “Israel's National Unity Governments”, in A. Arian and M. Shamir, supra n. 16, at 205–221, 215.

21 Sharfman, D., Living Without a Constitution: Civil Rights in Israel (New York, 1993)Google Scholar; Sharp, M.E., Wald, K.D. and Shye, S., “Interreligious Conflicts in Israel: the Group Basis of Conflicting Visions” (1994) 16 Political Behavior 157–178 Google Scholar; Etzioni-Halevi, E., “The Religious Elite Connection and Some Problems of Israeli Democracy” (1994) 29 Government and Opposition 477–493.CrossRefGoogle Scholar

22 Every Israeli man of Jewish origin who is 18 years old (but also some belonging to other groups such as the Druze and Bedouin) is legally obliged to serve three years in the Israeli Defense Forces, unless exempted by an order of the Minister of Defense. Similar duties apply to women (but only two years' service). Students in ultra-religious schools (yeshiva) enjoy such exemption as long as they continue their studies. In practice, almost no ultra-religious men do mandatory service. A similar exemption applies to ultra-religious women ( Rubinstein, A. and Barak, M., The Constitutional Law of the State of Israel (Tel-Aviv, Schocken, 1991) 315–319 Google Scholar; Sharfman, supra n. 21, at 82–84).

23 Arrow, K.J., Social Choice and Individual Values (Wiley & Sons, New York, 1963)Google Scholar; Farber and Frickey, supra n. 12.

24 Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 L.S.I. 139.

25 Hours of Work and Rest Law, 1951, 5 L.S.I. 125; Local Authorities (Special Enablement) Law, 1956, 11 L.S.I. 16.

26 Rubinstein, A. and Medina, B., The Constitutional Law of the State of Israel (Tel-Aviv, Schocken, 1996) 224 Google Scholar; The Import of Frozen Meat Law, 1994, S.H. no. 47, p. 104. See also n. 61 infra.

27 Rubinstein and Medina, ibid., at 195–199.

28 The Supreme Court is currently composed of 14 justices. The nomination committee (see infra) has adopted an informal policy under which there is always at least one religious judge serving in the Court. In fact, the number of religious judges in the Court has never exceeded two. Most justices are of a secular liberal background.

29 S.H. 1992, No. 1391, p. 150 and S.H. 1994, No. 1454, p. 90.

30 Bank Hamizrachi Hameuchad Ltd. v. Migdal Kfar Shitufi. (1995) 49(iv) P.D. 221; Hofnung, M., “The Unintended Consequences of Unplanned Legislative Reform: Constitutional Politics in Israel”, (1996) 44 Am. J. Comp. L. 585.CrossRefGoogle Scholar

31 Lezarovitz v. The Inspector for Food Supply (1956) 10 P.D. 40; Kalo v. The Mayor of Bat-Yam (1966) 20(ii) P.D. 327.

32 Isramex v. The State of Israel (1968) 22(ii) P.D. 343; Ashkar v. Minister for Labour and Social Security (1982) 36(iii) P.D. 141.

33 Miron v. Minister of Labor (1970) 24(i) P.D. 337.

34 Elitzur v. Israeli Broadcasting Authority (1970) 24(ii) P.D. 649; Rubinstein and Medina, supra n. 26, at 214.

35 The State of Israel v. Kaplan (1988) (2) P.M. 265; Rakover v. Armon Teatraot Ltd. (1986) (1) P.M. 336; Rubinstein and Medina, supra n. 26, at 222–223.

36 Funk-Schlezinger v. Minister of Interior (1963) 17 P.D. 225. Such marriages can be performed even through the mail in certain states, such as Mexico, thereby creating a convenient way to circumvent the statutory requirements (Rubinstein and Medina, supra n. 26, at 242–243).

37 Levi v. District Rabbinical Court (1959) 13 P.D. 1182.

38 Bauli v. Grand Rabbinical Court (1994) 48(ii) P.D. 221.

39 Shakdiel v. Miniser for Affairs of Religion (1988) 42(ii) P.D. 221.

40 Poraz v. Mayor of Tel-Aviv (1988) 42(ii) P.D. 309.

41 Keren v. Miniser for Affairs of Religion (1989) 43(ii) P.D. 661.

42 Miller v. Minister of Interior (1986) 40(iii) P.D. 436.

43 El-Al v. Danielovitz (1994) 48(v) P.D. 749. The Supreme Court ruled that the male spouse of a homosexual worker of El-Al (the Israeli National Airways Co.) was entitled to the same benefits rendered to spouses of heterosexual workers of the company. The decision brought about a public attack by religious politicians demanding that the ongoing nomination process of Justice Aharon Barak (one of the prominent figures within the activist stream at the Supreme Court) for the President of the Court be stopped (U. Benziman, Ha'aretz 9.12.94.).

44 Adguaitzo v. General Rabbinical Council of Israel (1989) 43(ii) P.D. 152.

45 Harel, A., “Gay Rights in Israel: A New Era?”, (1996) 1 Int'l J. Discrimination and the Law 261–278.CrossRefGoogle Scholar

46 Shor v. Attorney General (1957) 11 P.D. 285.

47 Nof v. Attorney General (1983) 37 P.D. 326. Vinagrad v. Attorney General (1980) 34(ii) P.D. 634; Dotan, Y., “Should Prosecutorial Discretion Enjoy Special Status in Judicial Review? A Comparative Analysis of the Law in England and in Israel”, (1997) Public Law 513–531.Google Scholar

48 Or-Ner v. Attorney General (1991) 45(i) P.D. 221; Maoz v. Attorney General (1992) 46(v) P.D. 397. Cf. Sheftel v. Attorney General 43(iv) P.D. 356. The Court was particularly deferential in cases where the Attorney General refused to instigate proceedings concerning offenses relating to the Arab-Israeli conflict, such as violation of the law against meeting with PLO members when such meetings were forbidden by a statute of the Knesset (Hanegbi v. Attorney General (1990) 44(iv) P.D. 798; Beeri v. The Head of Prosecutorial Department (1980) 34(i) P.D. 606) or when right-wing activists tried to use the Court in order to bring criminal proceedings against PLO leaders during the peace process on the ground of their involvement in terrorist activities in the past (Adler v. Attorney General 94(ii) Takdin 2074; Perchik v. Attorney General 38(iv) P.D. 341).

49 Tzofan v. Chief Military Attorney (1989) 43(iv) P.D. 718. The Chief Military Attorney is the highest prosecutorial authority in all issues concerning offenses relating to military staff. Decisions of the Chief Military Attorney are also subject to judicial review by the HCJ under the same standards applied to decisions made by the Attorney General.

50 Ganor v. Attorney General (1990) 44(ii) P.D. 485.

51 Suissa v. Attorney General (1994) 48(ii) P.D. 749. See also Eisenberg v. Minister of Housing (1993) 47(ii) P.D. 229 where the Court overruled a decision to nominate an ex-senior figure in the Israeli Secret Service (Shin-Bet) for the post of general manager of the Ministry of Housing. The Court ruled that since the nominee was involved in a public scandal in which he participated in a conspiracy to obstruct justice, the decision of the government to appoint him to a senior administrative position was unreasonable. Lahav, P., “A Barrel Without Hoops: The Impact of Counter-terrorism on Israel's Legal Culture”, (1988) 10 Cardoza L.R. 529.Google Scholar

52 There are a number of public action organizations whose main focus is on petitioning the courts in cases of sleaze related to politicians or public officials. The most active of these are “Amitai” and the “Organization for the Supervision of the Quality of Government”. These organizations as well as some cause lawyers (lawyers who are public activists) brought some of the landmark cases in the field of prosecutorial discretion before the HCJ.

53 Aloni v. Minister of Justice (1987) 41(ii) P.D. 1; Ressler v. Minister of Defence (1988) 42(ii) P.D. 441.

54 The Movement for the Quality of Government v. The Government of Israel (1993) 47(v) P.D. 404.

55 Amiti v. The Prime Minister of Israel (1993) 47(v) P.D. 441. Pinhasi was not brought to justice since the Knesset, in one of its most intensely criticised decisions, refused to remove his statutory immunity. The HCJ stopped short of reversing this decision of the Knesset (Pinhasi v. The Knesset (1994) 48(iv) P.D. 492) but nevertheless ruled shortly afterwards that Pinhasi could not continue to serve as a Deputy Minister.

56 Ganor v. Attorney General (1996) 50(iv) P.D. 1.

57 A different question is why a religious politician who is found to have committed a criminal offense does not account for it to his own constituency. It seems that some religious sections of the population (and in particular the ultra-religious sections) are so mistrustful of (if not hostile to) the State's apparatus of law enforcement that they refuse to regard even a criminal conviction as a reason to lose their trust in the convicted political leader. For example, another leader of the Shas party, Yair Levi, who was tried and convicted for theft and served over two years in prison was still able to come close to being elected to a seat in the Knesset on behalf of the Shas party during the elections following his conviction.

58 Under Israeli law, judges are nominated by a committee of nine members comprising three justices of the Supreme Court, two delegates of the Knesset, two Cabinet members and two delegates of the Israeli Bar. The whole process takes place behind closed doors, and even the names of the candidates are not published until the committee decides to recommend their nomination to the Minister of Justice (Zitrin v. Minister of Justice (1994) 48(i) P.D. 661).

59 Leaders of the religious parties have fiercely attacked the Supreme Court, alleging that the judges are no more than liberal politicians who are systematically trying to impose their liberal agenda, with no basis in law, on the reluctent general public (G. Alon, Ha'aretz 9.4.96; S. Ilan, Ha'aretz 18.4.96).

60 Elhauge, E.R., “Does Interest Group Theory Justify More Intrusive Judicial Review?”, (1991) 101 Yale L.J. 31–110.CrossRefGoogle Scholar

61 The Knesset has not overruled the HCJ on religion and state issues on many occasions. A notable exception is the non-kosher meat case. The Court instructed the government to carry out a policy of privatisation in the meat import market (Mitrael v. Prime Minister (1993) 47(v) P.D. 485.). The religious parties objected to this move since they feared that this would cause an increase in the volume of import of non-kosher beef. Under pressure from this quarter, the Labour government initiated a bill which explicitly allowed the government to prohibit such import on religious grounds. The Knesset approved the bill by a special majority of 61 members, in order to block any possibility of further intervention by the Court on the ground that the new statute did not conform to the requirements of the Basic Law: Freedom of Occupation. (The Basic Law includes a clause, under which the Knesset is authorised to pass a law which infringes on the freedom of occupation, provided that such law is enacted with the approval of a special majority of 61 (out of 120 members)). When an attempt before the HJC was made to challenge the new legislation, it failed, and the Court yielded to the Knesset determination (Mitrael v. Minister for Trade and Industry (1994) 48(ii) P.D. 844.).

62 Shalit v. Peres (1990) 44(iii) P.D. 353; Zarzauski v. Prime Minister (1991) 45(i) P.D. 749; Basic Law: The Government, 1992, sec. 13b.

63 For the general political importance of the process of screening cases by Constitutional Courts, see Caldeira, G.A. and Wright, J.A., “Organized Interests and Agenda Setting in the U.S. Supreme Court”, (1988) 82 Am. Pol. Sci. R. 1109–1127.CrossRefGoogle Scholar Por a description of political manoeuver by the Israeli Supreme Court in cases concerning the territories, see Dotan, Y., “Ripeness and Politics in the High Court of Justice”, (1996) 20 Iyunei Mishpat 93.Google Scholar

64 See for a systematic empirical analysis Shamir, supra n. 6; Kremnitzer, M., “The Landau Commission Report — Was the Security Service Subordinated to the Law, or the Law to the ‘Needs’ of the Security Service”, (1989) 23 Is. L.R. 216 CrossRefGoogle Scholar; Kretzmer, D., “Judicial Review Over Demolition and Sealing of Houses in the Occupied Territories”, in Zamir, Itzhak, ed., Klinghoffer Book on Public Law (Harry Sacher Institute, Jerusalem, 1993, in Hebrew)Google Scholar; Sharfman, supra n. 21; Barzilai, supra n. 2.

65 Dotan, Y., “Judicial Rhetoric, Government Lawyers and Minority Rights: The Case of the Israeli High Court of Justice”, (1997) (paper presented at the departmental seminar of the Faculty of Law, The Hebrew University, not yet published).Google Scholar

66 Association of Civil Rights v. Minister of Defense (1993) 47(i) P.D. 267. See also Association for Civil Rights in Israel (ACRI) v. Commander of Southern Command (1990) 44(iv) P.D. 626 (the El-Bureigh case). There, the Court allowed the demolition of a number of houses in a refugees camp while approving the refusal of the military commander to postpone the demolition in order to allow the owners of these houses a hearing before the demolitions took place. The actions taken by the military commander were taken after an Israeli soldier, who entered the camp by mistake, was brutally lynched by residents of the camp. The decision of the Court was given shortly after the event took place, and seems to be heavily influenced by the general outrage and shock which the murder stirred within the Israeli pubic opinion.

67 See text and notes in the introduction, supra.

68 Shamir, supra n. 6.

69 Barzilai, G., Yuchtman-Yaar, E. and Segal, Z., The Israeli Supreme Court and the Israeli Public (Papyrus, Tel Aviv, 1994, in Hebrew) 127–128 Google Scholar; Barzilai, G., Yuchtman-Yaar, E., and Segal, Z., “Supreme Courts and Public Opinion: General Paradigms and the Israeli Case”, (Winter, 1994) 4(3) Law and Courts 3–6.Google Scholar

70 Barzilai, Yuchtman-Yaar and Segal, “Supreme Courts and Public Opinion: General Paradigms and the Israeli Case”, ibid.