Establishing a Constitutional Court? An alternative political culture approach – the Israeli case

Establishing a Constitutional Court? An alternative political culture approach – the Israeli case

Gideon Doron and Assaf Meydani Abstract In the beginning of January 2002, the Israeli parliament (The Knesset) rejected a proposal that had been filed two years earlier advocating the establishment of a constitutional court of law. This article explains the legislative process in Israel and places it within the framework of the political-public dialogue about establishing a special constitutional court of law, outside the legal system, which would function solely as a critic of constitutional issues. The central claim we shall present stresses the role of the major divisions that exist in Israeli society, and the existence of an alternative political culture. These two factors, combined with the existing institutional structure, make it hard for the political system to cope with issues that require a change in public policy. Due to this phenomenon, the public has taken pro-active steps involving increased petitions to the high court that may help in the process of public decision-making or force the politicians to alter the existing institutional structure.

Introduction In June 2000, the Israeli parliament (henceforth: The Knesset) adopted a proposal introduced by Knesset member Eliezer Cohen (Israel Beytenu party) to create a constitution. The purpose of this proposal was to make the Knesset the founding authority “that will create a unified, comprehensive and complete constitutional document”.1 Forty-four out of 120 members supported the proposal. In November 2000, Knesset members Cohen and Igal Bibi (Mafdal) proposed a complementary plan to create a constitutional court of law. This proposition was supported by 52 Knesset members out of 120 members of the Knesset. The fact that the idea was raised by members of the religious Mafdal party came as something of a surprise because the religious parties in the Knesset had opposed the idea of a constitution since the country’s establishment. Did the representatives of these parties (Mafdal, Yahadut Hatora, Shas and others) simply decide at the dawn of the new millennium to change their minds? Or, was this what might be called a “heurostatic action,” (Riker 1986),2 the purpose of which was not necessarily related to the founding of the institution? What really might have been at stake here was a veiled threat to the high court to change its ways or the Knesset would curb its powers.3 In any case, on January 2, 2002, after strong opposition was raised by a number of groups, the Knesset rejected these two proposals. Senior lawyers

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convinced the Knesset members to rule out the idea of a constitutional court. Policy analysis is a relatively recent movement represents the efforts of actors inside and outside formal political decision-making processes to improve policy outcomes by applying systematic evaluative rationality (Wildavsky 1979; Geva-May and Wildavsky 1997). Yet, analytical opportunities appear to be idiosyncratic, requiring, at minimum, additional practical or pragmatic judgments and as well as suitability with national governance and administrative traditions (Gunningham and Cagan 2005; Howlett and Lindquist 2004). The purpose of the present paper is to explain the political process that makes use of lawmaking or the threat of lawmaking as part of the development of a public dialogue. In this case study, this dialogue revolved around the demand to found a constitutional court of law that would be outside the standard jurisdictional system and manned by special judges whose exclusive job would be constitutional criticism.4 We will use the logic of the Social Choice Theory and structural, socio-cultural tools that function as a framework that determines the actions of the various players on the legal-political level. We posit that the major divisions in Israeli society as well as the alternative political culture, together with the existing institutional structure, make it hard for the political system to cope with issues that entail the design of public policy. This problem is called in the literature ‘the non-governability of the political system’ (Arian et al. 2002; Dror 2001). Due to the lack of governability, the public turns with increasing frequency to the high court in order have decisions made or to force the politicians to change the existing institutional structure. This paper seeks solutions that would promote the ability of the political system to govern in a way that will enable it to formulate public policy on matters of concern to Israeli society. At present, a constitutional court of law cannot function as a structural solution to the issues of the non-governability of the political system. At best, it would be a mechanism that would meet varying levels of resistance from various interest groups. who may be dissatisfied with the quantity and quality of rulings that emerge from the court. The first part of the paper presents a model for designing and determining public policy in light of the social choice theory (Mueller 1989; Taylor, 1987). The model stresses the fact that the public policy underlying the proposal for the constitutional court of law proposition is the result of the action of four groups of political actors involved in the process of designing and determining public policy: politicians, bureaucrats employed by the state, interest groups and the public at large. The second part of the paper presents the structural-cultural processes that make the high court a central player in Israeli public life. The third part of the paper analyses the proposal to create a constitutional court of law. The analysis describes the proposal as a kind of equilibrium achieved as a result

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of complex debate among the players. The last part of the paper summarizes and presents conclusions pertaining to the need for a constitutional court of law. Design and determination of public policy: The actions of individuals based on cultural and structural conditions The discussion of the need for a special, constitutional court of law within the Israeli literature may be divided into three related issues. The first issue deals with the degree of judicial criticism leveled against the Knesset’s lawmaking (Barak 2003).5 The next issue pertains to the ways in which judges who discuss constitutional issues are appointed. The third issue, the one that is central to this paper, is determining the need for a constitutional court of law in the existing legal and institutional climate in Israel. Although many scholars claim that the creation of such a court of law is not needed, each one provides somewhat different explanations to substantiate his claim (Dotan, 1999).6 This paper stresses the point of view of public policy. In this context, Galnoor claims: “Israel has a democratic grain, deep within the political system. When political institutions are unable to cope with prolonged internal and external crises, public trust in those institutions erodes. Due to this fact, a mutual bond has been created between the general Judicialization processes in society…and between Judicialization, politics and managing. Moreover, due to the dominant position of politics, whatever occurs in it has an empowering effect – or even a formative one - on all spheres of life in Israel. Such widespread and lengthy processes are the ones that caused Judicialization as opposed to the so-called zeal of the courts of law” (Galnoor 2004). Galnoor stresses the importance of focusing on the factors that led the Knesset to bring up the issue of a constitutional court of law. In this article we shall examine the role played by various actors on the legislative scene. Referring to public policy as a result of the interactions between the four main groups: politicians, interest groups, bureaucrats employed by the state, and the public at large (Howlett and Ramesh 2003). This model stresses the interactions between politicians and the electorate. As in the market model, these relationships are based upon the mechanism of supply and demand (Downs 1957). The public recognizes a need and demands a certain policy, while the politician will respond only to those demands that in his mind would maximize his chances of being elected (Doron 1986). Due to the collective action issue, and the motivation of certain people to become ‘free riders’ (Olson 1965; Axelrod 1984) there is a lack (sub-optimization) in the supply of the needed public policy. When the general public has no demands, the power of small interest groups increases. Those groups manage to overcome

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the collective action issue and have a significant effect upon the design of public policy (Mitchell and Munger 1991). These organizations include nongovernmental ones, such as the ‘Government Quality Movement’, Israeli bar association and the ‘lobby in Favor of the Israeli Constitution’. An additional player that is also an interest group with the capability to influence the policy are the bureaucrats employed by the state, such as those in the legal system (Bendor 1990; Miller and Moe 1983). The final stage in the process of public policy determination is related to the interactions between the players inside the decision-making bodies, such as the Knesset. When the politician has reached his decision regarding the desired policy and dealt with the resistance from the bureaucratic state employees, he has to have the measure passed by a body composed of politicians. They have different interests, and therefore, passing a proposal involves adjusting it to the majority (Riker 1984; Shepsle and Weingast 1981). In this context, the social choice literature devotes a great deal of discussion to the connection between the policy maker’s action and the design of the agenda. The policy makers have the formal (or at times informal) authority to determine which alternatives to choose in order to achieve the desired policy, as well as the capability to allocate resources to fund these initiatives (Dahl 1961; Easton 1953). They interfere when there is a conflict or a possibility that a conflict could arise. Their decision is influenced by various factors including the response of the public and the media. Decision makers usually take action when they see a policy problem. A policy problem is a problem arising from a sense of discrimination or dissatisfaction that demands a public solution (Anderson 1979; Rabushka and Shepsle 1972). It is in this context that we can appreciate the proposal to create a constitutional court of law. Groups from the religious parties and the settlers lobby opposed the interference of the high court in certain issues, such as the drafting of religious college students (1999) or the prohibition on the use of certain interrogation methods by the general security service (1999). They went to the press and the Internet and demonstrated in order to express their dissatisfaction with the court’s decisions. For example, in February 1999, 250,000 people took part in one of the biggest demonstrations ever in Jerusalem (Doron and Harris 2000). The struggle that the demonstrators defined as the design and retention of collective and religious values moved to the forefront of the public agenda. The saliency of the issue as well as the raising of it for public debate reflected the desire of the demonstrators to have the policy makers give the issue more intensive treatment (Willmore and Carey 1968).

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The high court and the process of public policy making: The case of the proposition to found a constitutional court of law (2000) This part is divided in two. The first part pertains to the issue of the high court’s centrality in the Israeli public life. The second part analyses the proposition to create a constitutional court of law and the social discussion that developed as a parallel to the structural-cultural analysis in the first part. The centrality of the high court in Israel: Non-governability and alternative political culture Since the mid-1970s, two major changes have taken place in Israeli society. First, the dominance of the Labor party began to fade, and a two-party political system appeared. As a result, the power of the small sectoral parties such as the religious parties, rose, as they became the key to forming a coalition government. With the advent of direct elections for the prime minister in the mid-1990s, their power in the Knesset and the government became even greater. These changes brought about the weakening of the legislative branch of government relative to the judicial one. Second, as we will elaborate on later, the central characteristics of the political culture in Israel repressed during the 1950s and 1960s burst into the political arena and shaped the place of the law and the high court in Israeli society. Historically, before the founding of the state, political, social and economic institutions developed through semi-legal or illegal channels as a response to restrictive measures put in place by the British Mandate authorities. During the first two decades of the state, the political, economic and managerial systems were extremely centralized (Horovitz and Lissak 1989). These centralized systems, run by people of similar background, coupled with the tradition of acting through semi-legal channels, had a powerful effect upon the development of the political culture in Israel. Centralization prevented the development of alternative power centers such as interest groups and inhibited the development of a civil libertarian society. Moreover, due to the collective act issue mentioned earlier, there was not enough strong public pressure to change the situation as long as there was no serious existential crisis. That crisis arose however, during the Yom Kippur War, which revealed the extent of the public’s disenchantment with Labor’s policies in various areas of life. As a result, the public utilized its democratic tools (demonstrations, strikes and appeals to the mass media), and finally, during the 1977 elections, it unseated the Labor party government that had dominated Israeli political life since the founding of the state. In addition, even at the end of the 1960s, significant expressions of the illegal tradition

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that had characterized the pre-state period were resurfacing. In the wake of the Six Day War, illegal actions were used to create “facts on the ground.” In the beginning, the phenomenon was reflected in illegal settlements, which imposed a certain reality upon the government and the public. However, with the passage of time, the public seemed to become desperate about its inability to influence the government by legal actions, and this illegal way of coping spread into other areas of life. The American economist, Hirschman, has defined this kind of behavior as exit behavior. Lehman-Wilzig refined this term by labeling these illegal patterns of behavior as quasi-exit behavior. In other words, when people are dissatisfied with a certain policy or the supply of a public product, they will not necessarily use acceptable means of protest or completely withdraw from society. Instead, they will adopt one of two possible ways of coping. The first is an internal, passive retirement or a mental disengagement from events in the socio-political realm in favor of a focus on personal lives. The second is the active, alternative provision of the public product (Hirschman 1970; Lehman-Wilzig 1991, 1992). Thus, the government is threatened by its inability to supply the public product. The threat makes the politicians alter the policy according to societal demands. In other words, the politicians may react to this kind of pressure by legitimizing the illegal institutions created. This, indeed, has been the reaction of the political system in all issues regarding illegal settlements, cable television, and the grey market in education and health treatment. An alternative behavior (quasi-exit) is, therefore, a central characteristic of Israeli political culture as well as the main explanatory factor of its political processes. A similar explanation may be used to explain the processes that have shaped the high court in Israel (Mizrahi and Meydani 2003). As noted earlier, in the 1970s and 1980s, the public made extensive use of democratic tools in order to bring about a policy change. However, these measures proved to be ineffective and failed to lead to meaningful changes in public policy. This failure created a growing sense that the public was unable to affect the political system. The behavior of the united governments between the years 1984 and 1990 only reinforced the feeling that the political system had reached a dead end (Koren 1994). This sense led to a demand for a change in the electoral system and for alternative institutions that would be responsible for insuring public welfare. The high court was identified as alternative, seemingly because it has no specific game rules that define its role. Thus, by appealing in increasing numbers to this institution, the public tried to shape reality by creating “facts on the ground.” The appeals to the high court were strengthened by politicians who appealed to the high court as well, in an attempt to promote their interests in this arena because they could not do so in the legislative branch of government.7 Petitions from politicians raised their

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public profile and maximized their chances of being elected. In most cases the Knesset has chosen not to use its formal authority and has accepted the court rulings. By so doing, the Knesset has increased the high court’s power and further weakened itself as a serious governing body. It follows then, that the deep splits that exist in Israeli society, coupled with the institutional structure, keep the political system from coping with problems pertaining to the shaping of public policy (Hofnung, 1999; Barzilai, 1999). In the face of this paralysis, the public has appealed to the high court to begin the process of decision-making or to pressure the politicians to change the existing institutional structure. Moreover, it often seems that the petitioners are more interested in being heard and influencing the political agenda than in the results of the court’s decisions (Doron and Lebel 2005). Galnoor commented on the relationship between a political system and the courts: “What should we do when the politician’s actions are so aberrant as to pose a threat to democracy? We use the court of law. In such a period, the democratic values that should be axiomatic are not thoroughly applied. The absence of these values leads to a lack of trust in the rules of game as well as reduced faith that those rules will be observed. Included, too, are the actions of the government and the desire to trust the political process and its institutions. In this respect, the use of the high court as the keeper of the rules of the game might have helped; however, it has not prevented political corruption…the high court… is not the kind of institution that should decide on controversial ideological issues. It is better for political processes to cope with such issues, assuming that there is a political culture developed enough to allow this…” (Galnoor 2004). The main role of the high court as a social-political shaper of the public agenda in Israel is the result of deep, complex social-political processes that define the actions of the various actors in the political-legal sphere who shape policies that promote their benefits. These structural issues also affect the degree to which the proposed institution, the constitutional court of law, fits the public need. On the one hand, there is the question of the choice of judges for this court of law, considering the political system’s inability to govern. On the other hand, it seems that an alternative political participation culture would hamper social consensus regarding future decisions of the proposed constitutional court of law. Thus, a new mechanism would be created, encountering a certain level of resistance from various groups in the public who may be dissatisfied with the quantity and quality of rulings that emerge from the court. What would happen then? These instrumental issues are reflected in the political aspects of the proposition to found a constitutional court of law that will be described later.

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The political aspects of the constitutional court of law proposition – June 2002 During June 2002, the Knesset passed the first reading of a proposal regarding conferring the status of a founding authority on the Knesset. Forty- four Knesset members supported it, including senior ones from the Labor party, as well as Knesset members Moshe Katzav and Reuven Rivlin from the Likud. Moreover, the complementary proposal regarding the constitutional court of law gained the support of 52 Knesset members. Grounded in the basic principles of Israel as a democratic Jewish state, the essence of the proposal by Knesset members Eliezer Cohen and Igal Bibi was the creation of a constitutional court of law, which would be the only court of law allowed to rule on issues pertaining to constitutional ambiguities. The proposal also included suggestions about determining the composition of this law court. The legal system supported by the Minister of Justice The legal system, with the support of the Minister of Justice Meir Shetreet (Likud), expressed its objection to the proposal. The main difficulty cited was that providing the Knesset with the authority to appoint the constitutional court judges violates the norms of legal activity. This may lead to the politicization of judging, because the judges are no longer appointed according to their abilities but as representatives of different societal opinions (Barak 2003). The support of Knesset member Shetreet is not surprising. He is a part of the moderateliberal Likud and his attitudes regarding the court system mirror those of the public (Alon 2001).9 Politicians –The motivation of re-election David Mayew compares politicians’ motivations in democracies to the profit motive of businesses. Just as businesses engage in behaviours designed to maximize their profits, so too, do politicians engage in activities designed to get them re-elected (Mayew 1974; Bueno De Mesqita 2003). On the basis of this assumption, we can understand the behavior of the politicians with regard to the legal proposals outlined above. As expected, these propositions created tensions in the relationship between the court and the Knesset. The controversy pertaining to the position of the high court (especially the legitimacy of its rulings at the time)10 brought the tension to a head. Thus, the issue was perceived as one that had the potential to ignite a political conflict between the parties from which the politicians might profit. For instance, Knesset member Yuli Tamir (Labor), serving at the time as a member of the committee for appointing judges, criticized the judges

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on the high court, demanding a more representative composition. Later she even filed a proposal to broaden the committee that appoints the judges and change how it functions.11 By doing so, Tamir, usually associated with liberal positions (especially regarding the relationship of religion and the state), sent a message to centrist voters who might vote for Labor. Representatives of the religious parties likened Tamir’s position to that of the anti-religious Meretz party, despite her affiliation with Labor. Knesset member David Tal (Shas – a religious Sephardic party) made this very clear to his party’s voters by saying: “The high court has trampled everything good. It has turned into a tool of Meretz”.12 Eliezer Cohen (Ihud Leumi – rightist party) asked: “What is the high court of justice today? Today it is not accepted by half the people because it is political?”13 Another religious Knesset member Avraham Ravitz added that the high court had lost the trust of major parts of the public. On the other hand, Josef Lapid (Shinui - non-religious party) expressed strong objection to the creation of a constitutional court of law and accused the religious Knesset members of “a vicious intent to sabotage the legal system”.14 The interest groups’ activity Various groups took part in the struggle over the constitutional court of law, contributing to the importance and power of the issue. Among these groups were the representatives of the ‘Government Quality Movement’ that opposed the initiative. Lawyer Shmuel Shenar, Vice President of the movement explained: “One of the problems we see in the proposition is the composition of judges. The composition proposed for the constitutional court of law is political”.15 The idea of creating a separate constitutional court of law was born in the ‘lobby for the Israeli constitution’. In order to convince the Knesset members that they were right, the lobby launched two campaigns. The first was distributing explanation sheets to Knesset members, substantiating the position of the lobby. The second was the sending of delegations of Knesset members to parliaments and constitutional courts of law in Europe for the purpose of studying their methods. The purpose of the lobby was to expose the Knesset members to the complexity of the issue and the variety of possibilities and solutions. Knesset member Eliezer Cohen, who founded the lobby in the Knesset for the purpose of completing the constitution16, was one of the Knesset members sent to study the case both in Israel and abroad.17 Another group that influenced the debate was the legal community. It had doubts regarding the question of whether a constitutional change had actually occurred in Israel or whether the constitution was still waiting to be legislated.18 It is in this light that we may therefore understand Cohen’s proposal: “…only the Knesset has the authority to legislate a constitution in Israel”.19 This led to

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the debate as to whether there was a need for a constitutional court of law.20 The Israeli Bar association took the side of the high court’s president and objected to the creation of a constitutional court of law.21 Senior members from the legal community participated in a discussion held by the Knesset constitutional committee on July 2, 2001 on the issue and opposed the proposal. As public discussion increased, the legal community held a series of conferences on the topic. For example, the Israeli Institute of Democracy held a conference in November 2001 at Ben-Gurion University. A few months later, the Hebrew University and the University of Haifa held similar conferences regarding the issue of the constitutional court of law. These conferences examined different models of judicial criticism. In the political arena: The role of the chair of the constitutional committee As usual, after the proposal passed the first reading, it was sent to the constitutional committee of the Knesset for discussion. The chair of the committee, Ofir Pines (Paz), took the initiative of inviting those who opposed the creation of a constitutional court of law, including the high court’s president, to a series of six discussions dealing with the legal propositions. In the end, the constitutional committee proposed that the Knesset remove the law proposition from its schedule. Why did the committee take such a stand? It seems that Ofir Pines’s position as chair of the committee had a significant influence on the removal of this issue. Knesset member Bibi charged that, “Judge Barak worked hand in glove with Pines”.22 He went on to say, “Before the voting, there was a general gathering of Likud”.23 Zvi Hendel (HaIchud Haleumi – rightist party) said, “Prime Minister Ariel Sharon, Knesset member Yuval Shteinitz and many others who voted in favor of the proposition, now voted against it”.24 Hendel could not explain what made them change their minds at the last moment; however, he supposed that the pressure put on the Knesset members by the legal community played a part in it.25 Knesset member, Michael Eitan (Likud) was also unable to explain the choice of his peers. “I cannot explain why people would reverse their decisions”, he says.26 It is possible that what influenced the initiators of the political process regarding the decision to found a constitutional court of law was their impression of the level of trust the public has in governmental institutions. Measurements of public trust in governmental institutions show that there was a significant decline in the level of trust between the years 1995 and 2000. The level of public trust in the high court declined significantly between 1995 and 2000, from 86% to 61% (see Table 1). Such a dramatic decline supplied those who opposed the high court with justification for launching initiatives aimed at

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changing the high court’s role. However, during the same time period, the trust in Knesset members declined in an even more drastic fashion. As Table 1 shows, while in 1995 more than half of the public did not trust the Knesset (41%), in 2000 the percentage of the public that still trusted the Knesset went down to 14%. It seems that the position of the Knesset in the public’s eyes provided a justification for the high court to oppose the proposal to create a constitutional court of law. Table 1. The level of public trust in governmental institutions 1995 - 2000 Trust/Mistrust

2000 survey of the entire public

2000 survey of the adult Jewish public

1995 survey conducted by Peres and Yaar-Yochtman among the adult Jewish public

IDF

76%

83%

90%

The high court

61%

63%

85%

The Knesset

14%

13%

41%

The Government

16%

16%

40%

Parties

11%

11%

21%

Source: Knesset measurement – the public perception of the legislating authority. (www.knesset.gov.il/mmm/data/docs/mdd.htm)

In the debate surrounding the constitutional court of law initiative we should not ignore the desire of the Knesset members to be re-elected. The logic of the constitutional court’s opponents is simple though implicit: the adoption of the function of a prestigious institution by a declining one causes a further deterioration of the Knesset and its representatives in the eyes of the public.27 This logic may explain why the politicians decided in the end to vote against the constitutional court of law. It explains, as well, the stand of Knesset member Cohen (Ichud Leumi – rightist party) who, in his proposal for a constitutional court of law, provided an answer to the dissatisfaction of the voters with the high court’s decisions. Constitutional interpretation dealing with values, morals and ideology should be dealt with by people other than judges.28 Thus, his proposition to remove certain types of decisions from the high court increased

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his chances of being re-elected. The politicians – The Prime Minister’s stand There are people who think that because Ariel Sharon was not interested in starting another battle with the judicial authority, the proposal for the constitutional court was eventually abandoned. The rationale for this suggestion makes the following argument. In parliamentary systems in general, and in the Israeli one in particular, prime ministers have a great deal of power and status. This is the opinion of Asher Arian, David Nachmias and Ruth Amir in their book “Governability and the Executive Authority”. They say that “prime ministers are the primary political players in Israel… generally it is the prime minister who decides the daily agenda” (Arian, Nachmias and Amir 2002, 45). As a part of the decline of political parties (Korn 1998) and the rise of the value of “the new politicians” who were supposed to be attentive to the needs of the voters (Galili 2004), Sharon decided to order his party to vote against the proposal and remove it from the daily agenda. By doing so, he appealed to the political center29, a move that helped him tremendously in the 2003 elections when the number of his party members doubled. Knesset member Michael Eitan was the only one of the Likud members who voted against the majority of his party: “I supported the proposition to found a constitutional court of law, and I was very angry at our ministers and the government for voting to remove the issue from the daily agenda without first holding a discussion on it. That is why I let myself vote against the general position of the party members”.30 From a solution to the problem Public policy involves the work of many players. In this article the players are the politicians, bureaucrats, interest groups and the public. All of these function as part of an institutional structure that makes it hard for the political system to decide on a policy and to apply it. According to this, the initiatives of individual actors facing strong opposition may start processes that can significantly change the present situation. The case we considered was the initiative of Knesset members Bibi and Cohen to create a constitutional court of law in 2000. Their proposition was an attempt to change the rules of game, which, according to these two, were unfair to certain parts of the public. The proposition was removed from the daily agenda; however, the message seems to be clear but not for long.31 Since the social problem is beyond the limits of the Supreme Court it was not until 2007 that a major conflict arose between Chief of Justice Dorit Beinisch and the Minister of Justice Department Professor Daniel Friedmann

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over the nomination of several Supreme Court’s Judges. The claim presented in this article stresses the fact that the activism of the high court is a result of the deep splits that exist in Israeli society. These splits, coupled with the institutional structure, make it difficult for the political system to cope with issues that require the shaping of public policy. As an answer to this difficulty, which creates a lack of public policy in many spheres, the public has identified the high court as an institution that can provide solutions by applying pressure on politicians or by handing down legal rulings. The public’s increasing propensity to turn to the high court is not necessarily a function of a policy “subjecting everything to court rulings” or in the words of Judge Barak, “everywhere there is a judgment and measurement by judgment”.32 Rather, it is a function of deep and complex social and political processes that have turned the high court into the main institution designing the social and political agenda in Israel. The resulting reality is comfortable for some politicians. They can turn issues over to the high court without taking the risk of paying a political price for decisions that upset the institutional status quo. However, the high court has learned that in certain cases it is better to refrain from ruling and let the Knesset decide particular issues.33 In cases where the Knesset was unable to set policy, the high court had to take responsibility and hand down a ruling. Such rulings ran the risk of being only partially acceptable. They might harm certain groups and leave their members dissatisfied with the new policy. Therefore, representatives of such underprivileged (at least subjectively) groups might try to stop the high court from ruling on issues upsetting the status quo.34 If that approach did not work, the representatives would try to change the rules of game in their own favor. On the normative level, we attempt to show that there are no final answers. Therefore, a solution to a public problem first necessitates the definition of the problem. However, even after the problem has been defined, we should try to remain consistent when suggesting a solution. We mentioned, as well, that the issue is to be resolved by the Knesset, not the high court. Therefore, the solution is not to be found through formal arrangements such as the establishment of an alternative institution to the high court. Due to the problem of political system non-governability, the high court has become the public address for interest groups and politicians in order to provide an alternative governability. It seems that the solution we should embrace is one that would promote the governability of the political system by providing what it is missing.35 The establishment of the political system in a way that will enable it to promote public policy in matters essential for Israeli society becomes a super-mission. Until then, the interests of the politicians will shape the type

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of mechanisms used to create public policy. In many cases, these policies will encounter various levels of resistance from different interest groups dissatisfied with the quality and quantity of those policies.

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References Anderson, James E. (1979) Public Policy-Making. New York : Holt, 2nd Ed., Rinehart and Wilson. Arian, A., D. Nachmias and R. Amir. 2002. Executive Governance in Israel. The Israel Democracy Institute [Hebrew] Axelrod, R. 1984. The Evolution of Cooperation. New York: Basic Books. Barak, A. 2003. ‘The high court as a constitutional court of law.’ Law and Government (MISHPAT UMIMSHAL) 6 (2) 315 -327 [Hebrew] Barzilai, G. 1999. Courts as Hegemonic Institutions: The Israeli Supreme Court in a Comparative Perspective, Israel Affairs, 5: 15-33. Bendor, J. 1990. ‘Formal Models of Bureaucracy: A Review.’ In: N.B. Lynn and A. Wildavsky (eds.) Public Administration: The State of the Discipline. Chatham. NJ: Chatham House. Bueno De Mesqita, B., A. Smith, R. Siverson and J. Morrow. 2003. The Logic of Political Survival. Cambridge MA : MIT press. Dahl, R. 1961. Who Governs. New Haven : Yale University Press Doron. G. 1986. Deciding and Executing: Chapters in Public Policy. Tel-Aviv: Kivunim. [Hebrew] Doron, G. and M. Harris. 2000. Public Policy and Electoral Reform: The Case of Israel, Lanham, Mary: Lexington Books. Doron, G. and U. Lebel . 2005. The Politics of Bereavement. Tel-Aviv: HaKibbutz Hameuhad publication (second edition) [Hebrew] Dotan, Y. 1999. ‘Does Israel need a constitutional court of law?.’ Law and Government (MISHPAT UMIMSHAL) 5 (1) 117-163 [Hebrew] Downs, A. 1957. An Economic Theory of Democracy. New York : Harper and Row. Dror, Y. 2001. The Capacity to Govern: A Report to the Club of Rome. London: Portland. Easton, D. 1953. The Political System. New York : Alfred A. Knopf. Galili, O. 2004. The Dew-Politicians. Ramot: Tel-Aviv University. [Hebrew] Galnoor, I. 2004. ‘The Judicialization of the Public Domain in Israel.’ Law and Government (MISHPAT UMIMSHAL) 7 (1) 355- 386 [Hebrew] Geva-May, I. and A. B. Wildavsky. 1997. An Operational Approach to Policy Analysis: the Craft – Prescriptions for Better Analysis. Boston: Kluwer. Gunningham, N. and R. A. Cagan. 2005. ‘Regulation and Business Behavior.’ Law and Policy 27 (2): 213-218. Hirschman, A. 1970. Exit, Voice & Loyalty. Cambridge: Harvard University Press. Hofnung, M. 1999. Israeli Constitutional Politics: the Fragility of Impartiality, Israel Affairs, 5: 34-54. Horovitz, D. and M. Lissak. 1989. Trouble in Utopia: The Overburdened Polity of Israel, Albany: State University of New York Press. Howlett, M. and E. Lindquist. 2004. ‘Policy Analysis and Governance : Analytical and Policy Styles in Canada.’ Journal of Comparative Policy Analysis Research and Practice 6(3): 225-251. Howlett, M and M. Ramesh. 2003. Studying Public Policy: Policy Cycles and Policy Subsystems. Oxford: Oxford University Press. Korn, D. 1994. Grey Times: United National Governments 1984-1990. Tel-Aviv: Zmora-Bitan [Hebrew] Korn, D. ed. 1998. The Decline of Parties, Tel-Aviv: Hakibbutz Hameuhad publishers [Hebrew] Lehman-Wilzig S. N. 1991. ‘Loyalty, Voice and Quasi-Exit.’ Comparative Politics 24: 97-108. Lehman-Wilzig S. N. 1992. Wildfire: Grassroots Revolts in Israel in the Post-Socialist Era. Albany: SUNY Press Mayew D. 1974. Congress: The Electoral Connection. New Haven: Yale University Press. Miller, G. and T. Moe. 1983. ‘Bureaucrats, Legislators, and the Size of Government.’ American Political Science Review 77: 297-322.

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Mitchell, W. and M. Munger. 1991. ‘Economic Models of Interest Groups: An Introductory Survey.’ American Journal of Political Science 35: 512-546. Mizrahi S. and A. Meydani. 2003. ‘Political Participation via the Judicial System: Exit, Voice and Quasi-Exit in Israeli Society.’ Israel studies 8 (2): 118-138 Mueller, D. 1989. Public Choice II. Cambridge: Cambridge University Press. Olson, M. 1965. The Logic of Collective Action. Cambridge: Harvard University Press. Rabushka, A. and K. A. Shepsle. 1972. Politics in Plural Societies : A Theory of Democratic Instability. Columbus, Ohio : Charles E. Merrill Riker, W. 1984. ‘The Heresthetics of Constitution-Making: The Presidency in1787, with Comments on Determinism and Rational Choice.’ American Political Science Review 78: 1-16. Shepsle, K. and B. Weingast. 1981. ‘Structure-Induced Equilibrium and Legislative Choice.’ Public Choice 37: 503-19. Taylor, M. 1987. The Possibility of Cooperation. Cambridge: Cambridge University Press. Wildavsky, A. B. 1979. Speaking Truth to power: The Art and Craft of Policy Analysis. Boston. MA: Little, Brown. Willmore, K. and G. W. Carey .1968. ‘The Intensity Problem and Democratic Theory.’ American Political Science Review 62: 5-24.

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Notes 1. See summary “this week in the Knesset” dated 7/06/2000 on the Knesset site http://www. knesset.gov.il 2. Heurostatics is a doctrine of political manipulation: presentation of reality in ways that the results of the political interaction will always be for the good of the manipulator. See Riker, W. 1986. The Art of Political Manipulation, New Haven: Yale University Press; see also Doron, G. 1996. Election Strategy, Rehovot: Kivunim [Hebrew]. 3. There are numerous examples of favorable judicial rulings by the Supreme Court that have contributed toward enhancement of civil rights in matters of religious practice, in light of developments in Israeli society. For example: The Court struck down municipal bylaws that forbade the sale of pork H.C. 117/55; 72/55 Siegfried Avraham Fraidi v. Tel Aviv-Jaffa Municipality and others, Shmuel Mendelsson v. Tel Aviv-Jaffa Municipality, PD 10(2) 734.; The Court recognized the right to alternative burial, years before the Knesset set this right into law H.C. 397/88 Menucha Nechona v. Minister of Religious Affairs (not published); The Court has also played a primary role in defending the status of female members of public religious bodies (HCJ 153/87. Leah Shakdiel v. Minister of Religious Affairs et a PD 42(2) 221; HCJ 753/87. Poraz v. Mayor of Tel-aviv PD 42 (2) 309). The Court clarified that the Chief Rabbinate and its associated bodies, including religious court judges and rabbinical courts, are public bodies that are subject to the rule of law and the judicial review of the High Court of Justice and must therefore abide by non-discrimination laws H.C. 732/84 Tzaban v. Minister of Religious Affairs, PD 40(4) 141. 4. The constitutional court of law proposition; the constitutional court of law convention, the Hebrew University 16/01/01; The Israeli Institution of Democracy convention, November 2001. 5. See also Segal, Z. 2003. The use of a Judgment Day weapon in judicial criticism’, Law and Government (MISHPAT UMIMSHAL) 6. (2): 337 [Hebrew]; Mautner, M. 1993. The Decline of Formalism and the Rise of Values in Israeli Law. Tel-Aviv: Ma’agalay Da’at [Hebrew]; Barzilai, G., and I. Sened 1997. How do Courts Accumulate Power and Why they Lose it: an Institutional Perspective (unpublished paper, presented in APSA, Boston.; Dotan, Y. and M. Hofnung, 2001. ‘Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and In-Out-Of Court Settlements’, Law and Policy, 23:1-27 6 See also Shetreet, S. 2004. On judging – the justice system in law, Tel Aviv: Yedioth Aharonoth publication, p. 623. 7. For data concerning increased of appeals to the court relative to the earlier period see Dotan, Y. and M. Hofnung, 2001. ‘Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and In-Out-Of Court Settlements’, Law and Policy, 23:1-27 and to data concerning politicians’ appeals to the court see Dotan, Y. and M. Hofnung, 2005. ‘Legal Defeats—Political Wins Why Do Elected Representatives Go to Court?’, Comparative Political Studies, 38 (1): 75-103. in their article Dotan and Hofnung found that over the past 20 years, there has been a noticeable trend in which Israeli parties and politicians have turned to the courts for intervention in national and internal party affairs, government policies, and even parliamentary procedures. Their study indicates that politicians seek litigation even when their chances of winning in court are marginal. According to the findings, politicians exhibit a lower propensity to seek out-of-court settlements than other kinds of litigants. The results suggest that politicians resort to litigation to challenge majoritarian policies and also because they gain considerable media exposure (regardless of the actual outcome of litigation), enhancing their political stature. 8. It is worth noting the role that Prof. Aharon Barak, the president of the Supreme Court, had during the studied period. In 1992 Aharon Barak declared that a constitutional revolution had occurred in Israel. Israel’s parliament , the Knesset passed 2 new basic laws that year: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Barak argued that these new basic laws must be treated as foundational legal principals overriding normal legislation, despite

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Israel’s lack of a written constitution (Barak A. 1993. ‘The Constitutional Revolution: Protected Human Rights’, Law and Government (MISHPAT UMIMSHAL), 1 (1): 9-10 [Hebrew]). On 1995 the Supreme Court headed by Barak recognized this principle (CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, in Decisions, vol. 49, section 4, p. 221 [Hebrew]). furthermore Barak has even personally advocated against the need for a separate Constitutional Court, both in Public and in writing i.e. Barak, A. 2003. ‘The Supreme Court as a Constitutional Court’, Law and Government (MISHPAT UMIMSHAL), 6: 315 [Hebrew] see also his speech in front of the Israeli Democracy Institute on November 1, 2001. 9. Gideon Alon, ‘Religious Knesset members attack the high court: it does not represent the people’, Haaretz, August 29, 2001. 10. See for example, HCJ 5100/94, the public committee against torture in Israel v. the Israeli government PD 53 (4) 817. (the ruling on the issue of prohibiting the use of torture in the GSS interrogations); HCJ 6698/95, Kaadan v. Israeli land administration 54(1) 258. (the ruling regarding the prohibition of discrimination of Arabs in being accepted to a Jewish settlements); Zvi Noah, the issue of the constitution had excited the public in the last few years. Is there really a judicial “law revolution” as the high court president, Aharon Barak claims, or does the constitution still await it legislation? Globes, 7/02/2001. 11. See Member of Knesset Prof. Yuli Tamir’s speech: “we have no process of hearing as in other countries, to provide the public with the knowledge, who are the people and what is their judicial record. As a former member of a judge appointing committee, I can say that the members of the committee know very little of the judges they choose. This process should be brought to a public discussion and we should not be afraid of it. I am saying this especially to the people in my own camp. From protocols /constitutional committee/ 6351 Jerusalem, 1st of April 2003; See also basic law proposition: judging (amendment by the judge appointing committee for the high court) filed to the chair of the Knesset and brought to the Knesset at 9/06/2003. Thus, one of the principals of picking judges for the high court would be the “proper proportion of different sectors of the Israeli society”. Explanation of the proposition: “ the choice of judges for the high court should be made by a special committee”. See also, the discussions of the public committee aimed at completing the legislation as well as the wording of the existent basic laws, in order to receive broad public acceptance for the completion of the legislation of an Israeli constitution: Yaakov Neeman- chair, Chaim Corpo, Uriel Lin, Uriel Raichmann, Eyal Arad, Yaffa Zilbershatz and Tamir Shaanan, as well as constitutional committee discussions in this respect, protocol num. 204, Law and Constitution Committee, (14/04/2004). 12. Gideon Alon, ‘Religious Knesset Members Attack the High Court: Does not Represent the People’, Haaretz 29/08/01. 13. Zvi Noah, the issue of the constitution had excited the public in the last few years. Is there really a judicial “law revolution” as the high court president, Aharon Barak claims, or does the constitution still await it legislation? Globes, 7 February 2001. 14. Gideon Alon, the constitutional committee accepted two out of the three basic laws, Haaretz, 18 September 2000. 15. Gideon Alon, Ibid. 16. Gideon Alon, Ibid 17. Lex Ofra, ‘Aharon Barak’s Nightmare’, At Seven (BESHVAA - an ultra-orthodox newspaper), volume 24, 3 January 2003. 18. See the position of judges Aharon Barak and Mishael Hashin in the case of United HaMizrahi Bank Ltd. And others v. communal village Migdal and others PD 49 (4) 221. 19. Zvi Noah, the struggle for the constitution, Globes 7 February 2001. 20. Thus, for example, Prof. Ruth Gavison expressed an opinion contrary to that of the high court president judge Aharon Barak: “we refer to a special court of law which only authority is this [to cancel laws- G.D, A.M] this is so in European countries, and it does not constitute a decrease of

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honor”, cited in Zvi Noah, The Struggle for a Constitution, Globes, 7 February 2001. 21. Yoav Itzchak, “High court judges recruited senior academics in order to help them prevent the founding of a constitutional court of law”, website www.nfc.co.il 3 July 2001. 22. Lex Ofra, Ibid. 23. Lex Ofra, Ibid.; Yoav Itzhak 5 November 2001, website www.nfc.co.il “the constitutional committee voted against the constitutional court”. 24. Lex Ofra, Ibid. 25. Lex Ofra, Ibid. 26. Lex Ofra, Ibid. 27. Tova Tzimuki, Why did the Justice Barak Called the Knesset Members? Yedioth Aharonoth 11 June 2000; see the speech of judge Aharon Barak: “the high court has no sword nor purse. All it has is the public trust… the Israeli society is divided – Right and Left; Orthodox and non-religious Jews; Arabs and Jews; Oriental and European Jews. One of the greatest achievements of the state is its law and its judges. All must be done to keep them intact; they must be assisted, promoted and developed. This is to be done by the government and the Knesset, the lawyer chamber and each and every Israeli citizen” (Barak, high court, www.court.gov.il), part of the speech was given during the lawyer chamber convention in Eilat Israel, 15 May 2001). 28. The position of Knesset member Eliezer (Chita) Cohen,2003. Law and Government (MISHPAT UMIMSHAL), 6 (2): 351. 29. It is worth noting that the conflict between the Supreme Court and the Politicians [Israeli Knesset members] is more than the activisim of the Suprem Court in relation to the Knesst, but, more as interpretive of values in dispute in the Israeli society, an image of trust as well as dignity and accountability. In this aspect the public trust in the Suprem Court is far more persuasive that the public trust in the policians as shown in the polls in the article. In this case adopting the way of the Suprem Court is much more compelling for politicians than adopting the way of the rightist parties as well as the religiues parties. More over Gad Barzilai Zeev Segal and Efraim Yaar showed in a poll (1991) that the Israeli public disliked trials done by politicians or judges to change the separation of powers in Israel. In the case elaborated in the article the notion was that the rightists and religious politicians wanted to punish the Supreme Court by decreasing its power (Barzilai, G. YuchtmanYaar, E. and Segal, Z. 2004. The Israeli Supreme Court and the Israeli Public, Tel-Aviv: Tel Aviv University Press). 30. Ofra Lex, ibid. 31. See for example HCJ 1030/99 Oron v. Knesset Speaker, PD 56(3) 640: Cancellation of a law that granted broadcast licence without a tender to radio stations operating for over 5 years in light of the violation of competitors’ freedom of accupation.see also HCJ 8276/05 Adalah - The Legal Center for Arab. Minority Rights in Israel et al. v. the Minister of Defense, (not yet published) : the Supreme Court accepted a Petition to void Amendment No. 7 of the Civil Wrongs (Liability of the State) Law, which denies subjects of an “enemy state” and members of “terrorist organizations” the right to compensation for injuries they sustain at the hands of security forces. The amendment also denies Palestinians the right to sue for compensation if they are injured in an area outside Israel declared a “conflict zone” by the Defense Minister, except for a few exceptions. See also HCJ 1661/05, The Gaza Coastal Regional Council v. The Knesset et al, PD 59 (2) 481: the Israeli Supreme Court canceled several provisions of the disengagement law , such as those which denied the evacuees the right to sue under general law or limited the minimum age for receiving grants to 21. 32. HCJ 910/86, Resler v. the Minister of Defense, PD 42(2), 441. 33. see for example, HCJ 1031/93 Pasaro Goldstein v. Minister of the Interior, PD 49 (4), 661; HCJ 5016/96, Lior Horev and others v. the Minister of Transportation and others, PD 51 (4), 91; HCJ 1715/97, Israel Investment Manager Department v. Finance minister, 51 (4), 367. 34 HCJ 5364/94, Valner v. the Vice President of the Avoda party, PD 49 (1), 758.35 Moshe Gorali, the

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return to a single note is already a failure, Haaretz,, 3 January 2003; See the opinions of Asher Arian, Gad Barzilai, Amnon Runbinstein, Arye Carmon, Claude Klein and Daphne Barak-Erez regarding the change in the election system or judicial and legal formulas.