Judicial review of constitutional transitions: war and peace and other sundry matters.
Constitutional transition periods present a twilight time between two executives. At such times, the outgoing executive's authority is questionable because of the democratic difficulties and agency concerns that arise at the end of the executive's term. Thus, parliamentary systems developed constitutional conventions that restrict caretaker governments' action. These conventions seem to achieve the desired results in the United Kingdom, Canada, New Zealand, and Australia. In contrast, in the United States, the prevailing norm is that there is only one president at a time, and this is the incumbent president, who is fully authorized to govern the country and his or her discretion is unfettered. Transition periods are thus exploited by U.S. lame-duck presidents to make last-minute appointments, regulations, and even international agreements. Israel does not fit either of the two poles in the dichotomy between parliamentary systems that successfully deal with caretaker authority and presidential systems that do not. Though a parliamentary system, its constitutional history is full of examples of abuse of caretaker power. This has led Israel's Supreme Court to treat the sphere of authority of caretaker governments as justiciable in contrast to other courts' treatment of the subject. Exploring its case law in issues of war, peace, and other lesser matters offers a rich case study of the standards that should govern this unexplored legal-political area.
Using Israel as a case study within, a comparative constitutional framework, this Article suggests three important lessons. First, it is not the nature of the constitutional system per se, whether parliamentary or presidential, that determines the success of preventing abuses of transitional governments' power. Rather, the potential for abuse exists in both types of systems. Furthermore, the challenges posed by these transitional governments are similar in both types of systems. Second, transitional governments' power is not a topic that courts are inherently unable to regulate. Rather, if constitutional conventions fail to do their job or do not evolve, judicial review is a potent possibility. Last, it is not enough to determine that transitional governments must act with restraint, as the Israeli Supreme Court has determined, but it is important to give concrete meaning to which actions are permitted by transitional governments and the circumstances under which they are allowed. The Article concludes by delineating such general guidelines.
TABLE OF CONTENTS I. INTRODUCTION II. THE CHALLENGES POSED BY TRANSITIONAL GOVERNMENTS A. The Agency Problem B. The Democratic Deficit C. Efficiency and Instrumental Concerns D. Comparative Experience with Regulating Transitional Governments III. TREATING CARETAKER ACTION AS JUSTICIABLE A. Conducting Peace Negotiations 1. The Weiss Decision 2. The Livnat Decision 3. Comparative Experience with International Agreements B. Appointments and Actions in the Public Sector 1. Public-Sector Appointments When Government Representatives Do Not Occupy a Majority in the Appointing Body 2. Appointments in Which the Government Has No Influence 3. Appointments in Which the Government Has Decisive Influence 4. Comparative Experience with Public-Sector Appointments C. Distribution of Material Goods to the Public 1. Distribution of Material Goods to the Public 2. Comparing Distribution of Material Goods and Public-Sector Appointments 3. Comparative Experience with Distribution of Material Goods to the Public IV. WHY DISTINGUISH PEACE NEGOTIATIONS FROM PUBLIC-SECTOR APPOINTMENTS? A. Reversibility 1. Distinguishing Signing from Ratification 2. The Significance of Signing 3. The Israeli Peace Process B. The Mandate Issue 1. Peace Negotiations 2. Public-Sector Appointments C. The Justiciability Issue V. GENERAL PRINCIPLES OF THE DESIRED LAW A. Regular-Course-of-Affairs Criteria B. Permitting Extraordinary Measures 1. A Vital Public Need for Action 2. Preapproval of the Legislature for Taking an Extraordinary Measure VI. CONCLUSION
As a cautionary tale of the vulnerability inherent in transition periods and the serious dangers that can follow, one need only recall that the Nazis were able to overtake Prussia--the largest Lander (state), controlling two-thirds of Germany's territory and population--while a caretaker government ran it because, inter alia, the government was too weak to fight change. At the same time, Nazism's rise was also enabled by the gradual weakening of the federal Weimar parliament through repeated dismissals by the federal executive, which resulted in numerous periods of caretaker authority seriatum. (1) A nation needs its caretaker to be strong enough to fight undemocratic revolutionary forces, yet not so strong that it becomes the vehicle of internal gambits to extend or expand control.
Caretaker and lame-duck governments operate in the interim between two executives in parliamentary and presidential systems respectively. (2) They are a recurrent phenomenon around the world, yet their authority is an academically neglected topic, especially in the area of constitutional law. (3) Despite their name, which implies that their power is or should be curtailed, these governments enjoy full authority in most democratic legal regimes. The justification is practical: Someone needs to run the state even during transition periods. Yet, these governments suffer from both agency difficulties and democratic deficits.
To deal with the challenges, parliamentary systems have developed conventions, not enforceable in courts, for restraining caretaker actions. (4) In fact, these conventions seem to work well in the United Kingdom, Canada, New Zealand, and Australia. These countries barely discuss caretaker power, and they do not report significant abuse of that power. This is so despite the fact that some of these countries have proportional-representation election methods and thus suffer from long transition periods. (5) No similar conventions developed in the United States, where the governing norm is that there is only one president at a time, the incumbent president, who is fully authorized to deal with all matters and his or her discretion is unfettered. (6) In fact, U.S. lame-duck presidents are famous for their "midnight actions," (7) which may include controversial pardons, appointments, regulations, and even the signing of international agreements. (8)
It could be argued that the difference between these various countries' experiences should be attributed to the nature of the constitutional system, whether parliamentary or presidential: Parliamentary systems by their nature better deal with transitional governments than presidential systems. Thus, they do not exhibit the same abuse of caretaker power. Since a president is directly elected by the people, he or she enjoys full authority even as a lame duck. In contrast, caretaker governments are more subdued because they have no independent mandate from the people and have lost the indirect authority from the people, through a parliament, during transition. (9) In addition, as directly elected chief executives, presidents enjoy unilateral powers that are usually not available to their prime minister counterparts in parliamentary systems. (10)
However, Israel's experience seems to disprove this dichotomy between the happy story of caretaker governments in parliamentary systems and the failed story of U.S. lame-duck presidents. Though a parliamentary system, Israel has a long history of abuse of caretaker power.
Against the backdrop of an enduring emergency and ongoing threat to its security, Israel's vulnerability is only exacerbated by the high rate of executive turnover. Although its Basic Law: The Knesset defines the Knesset's (Israel's Parliament) term of office--and by inference also that of the government--as a stable four-year term, (11) surprisingly, Israel has had thirty-two governments during the past eighteen Knesset terms. (12) Governments have not survived more than an average of twenty-two months since the state was founded because of the combined effects of its parliamentary system, proportional-representation election method, and a low electoral threshold of 2 percent. (13) The period of transition can stretch for many months--from six months before elections to a few months following elections. (14) Israeli caretaker governments serve an average of eighty days (eleven weeks).
During these transition periods, caretaker governments in Israel acted in ways resembling lame-duck presidents in the United States, who have sought to make public-sector appointments, conduct international negotiations, or embark on military operations before relinquishing the reins of power. (15) For example, lame-duck President George W. Bush finalized a bilateral military accord with the Iraqi government against the wishes of President-elect Barack Obama, Congress, and the American people. (16) President Bill Clinton signed the Rome Statute, the treaty establishing the International Criminal Court, (17) which led the newly elected President Bush to take the remarkable and unprecedented act of "unsigning" the treaty. (18) Further back in U.S. history, lame-duck President Jimmy Carter signed the Algiers Declarations on his last day in office in return for the release of American hostages held in Iran. This was done despite (or perhaps because of) the fact that the new President-elect, Ronald Reagan, ran on the opposite platform of taking a harsh nonnegotiable stand against Iran. (19)
These midnight actions of lame-duck U.S. presidents have their roots in the beginning of the republic. In fact, the famous Marbury v. Madison case (20) dealt with massive midnight appointments to the judiciary made by President John Adams in his last days in office in order to entrench Federalist agendas. When the Federalists realized that they had lost control of Congress and the presidency for the first time since the Constitution was adopted, they exploited the lame-duck period to decide contested international issues, enact statutes, and make pivotal appointments, including the appointment of Chief Justice John Marshall. (21)
Similarly, the Israeli caretaker government, headed by Prime Minister Ehud Olmert, embarked on Operation Cast Lead in Gaza, which was the subject of fierce international criticism that culminated in the now-refuted Goldstone report. (22) Further back, Prime Minister Menachem Begin bombed the nuclear reactor in Iraq on June 7, 1981, shortly before the June 30th election date. He did this out of concern that the Labor Party would gain power, and "the government headed by Peres would be incapable of making such a decision and carrying it out." (23) Begin took this action even though he knew that his likely successor, opposition leader Shimon Peres, was against it. (24)
Midnight actions of Israeli caretaker governments do not consist of military operations alone. They also include acceleration of peace negotiations in attempts to reach agreements or finalize understandings before losing power. In fact, the landmark 2001 case of Weiss v. Prime Minister of Israel, (25) which set the legal standard for caretaker government conduct, dealt with accelerated peace negotiations with the Palestinian Authority conducted by Prime Minister Ehud Barak's government twelve days before elections, after the government lost a no-confidence parliamentary motion and its coalition fell apart over these very talks. (26) More recently, Prime Minister Olmert attempted to conclude the deal for release of the kidnapped soldier Gilad Shalit in exchange for Palestinian prisoners held by Israel in his last days in office--after it was known that Benyamin Netanyahu would replace him--but failed. (27) Last minute actions of transitional governments are thus of potential common concern to both presidential and parliamentary systems, though Israel is quite exceptional among parliamentary systems in having these widespread abuses of caretaker power.
In both the United States and Israel, constitutional conventions that restrict transitional executive actions did not properly develop. (28) However, the countries depart in how their legal systems have reacted to the challenge. Unlike the U.S. Supreme Court--where no cases have arisen, and even if they were to arise, the issue would most likely be treated as nonjusticiable (29)--the Israeli Supreme Court treats the exercise of caretaker government's authority as a justiciable issue. In the landmark Weiss case, the court ruled that caretaker governments enjoy full authority as regular governments, but should nonetheless act with restraint, unless there is a "vital public need" at stake. (30) The Israeli Supreme Court actively supervises the application of this standard. In fact, between December 2008 and January 2009, petitioners filed numerous petitions against actions pursued by Olmert's caretaker government, and the court decided all on the merits. (31)
Treating caretaker governments' actions as justiciable is exceptional in comparative terms. (32) It is thus interesting to examine whether the Israeli experience sets a record of successful judicial intervention. This Article divides the Israeli Supreme Court's decisions into three categories of caretaker action: (1) conducting peace negotiations, (2) making public-sector appointments and actions, and (3) distributing material goods to the public. This Article discusses both Israeli and comparative experience with regard to each of these categories.
Though the Israeli Supreme Court uses the same rhetoric of Weiss in all three categories, this Article argues that de facto it applies the Weiss standard differently, depending on the category to which the action belongs. (33) When examining what the court has done (judicial results), rather than what it said (judicial reasoning), the picture that emerges is that the court has prohibited public-sector appointments across the board during caretaker administration, while routinely permitting accelerated peace negotiations. (34) This seeming contradiction is not supported by comparative treatment of these categories. In other parliamentary systems that abide by caretaker conventions, caretaker governments are banned from making both significant public-sector appointments and international agreements.
This Article offers three possible explanations for these seemingly conflicting results: (1) the reversibility of the action taken; (2) the importance of representing electoral opinion; and (3) the justiciability of the issue, including the existence of alternative remedies to the court's intervention. However, upon reflection, this Article suggests that these three distinctions--derived from the court's opinions--should lead to results that are the opposite of what the court decided. That is, during transition periods, peace negotiations should have been banned, while some public-sector appointments should have been permitted. (35) The risk of making the wrong decisions is not a mere technicality; in this era of globalization, media manipulation, and the use of religion as social control, a caretaker government acting improperly can mean the difference between a democratic government and a totalitarian one. It can also lead to the corrosion of good faith in international relations at a time when cross-national ties are already strained.
The troubling results of Israeli judicial decisions in the area of caretaker action, coupled with the fact that comparative jurisdictions treat the issue as governed by conventions alone, should not lead to the conclusion that this topic, by its nature, is per se nonjusticiable and cannot be successfully judicially supervised. Rather, this Article argues that the difficulties with Israeli jurisprudence result from the lack of detailed concrete standards for what actions are permitted and under what circumstances they are permitted.
This Article thus proposes to explicitly yoke the need for restraint to any contemplated "extraordinary actions"--those that are not in the regular course of affairs. This Article explains why this is the right standard and delineates criteria for what actions should be treated as extraordinary. Extraordinary actions will be permitted only if they are justified by a vital public need or if they are preapproved by an incoming legislature. This proposed framework may fit other countries dealing with transitional authority. While in some countries this transitional regime may be part of the country's soft law governed by conventions or government codes alone, as in the countries that were formerly part of the Commonwealth, other countries may need a more vigorous regime supervised by judicial review, as in the case of Israel.
Part II sets forth in brief the theoretical framework for dealing with the authority of transitional governments in parliamentary and presidential systems. It further discusses the comparative experience with regulating such governments. Part III analyzes Israel's exceptional jurisprudence on caretaker actions, dividing judicial decisions into three categories as defined above. Each category is analyzed under both Israeli and comparative law. Part IV suggests three explanations for the seemingly conflicting results achieved in Israeli jurisprudence with regard to the three categories. This Article further argues that the three explanations are ultimately unconvincing bases on which to permit peace negotiations yet prohibit across the board public-sector appointments during caretaker periods. Part V suggests that Israel's jurisprudence has reached problematic results, not because caretaker authority cannot be regulated by the courts, but because the courts failed to develop concrete criteria for which actions should be allowed and under what circumstances. This Article proposes a legal framework for a transitional government's powers that takes into account both the democratic drawbacks and the concern that its actions will be driven by extraneous considerations relating to elections or the loss of its power. This proposed framework aims to strike the proper balance between the need for continuity of government and the desire to protect democracy. Part VI provides a summary and conclusion.
II. THE CHALLENGES POSED BY TRANSITIONAL GOVERNMENTS
No one disputes the need to have a government in place at all times. Nonetheless, the transition period is characterized by two unique constitutional problems. First, there is the agency problem, which leads to the significant concern that governments' actions will be driven by the wrong motives. Second, transitional governments enjoy only weak democratic legitimacy. This Article discusses each in turn. It then offers counterarguments based on concerns about efficiency and instrumentalism that suggest that governance must have continuity even during transition periods. This Part concludes with a portrayal of the comparative experience of regulating these governments.
A. The Agency Problem
The "agency problem" describes the gap between the interests of the representative and the interests of constituents, and the likelihood that the former will make decisions to further his or her own agenda at the expense of the latter. (36) This problem is especially acute during caretaker and lame-duck periods. The concern is that these governments will pass resolutions and adopt measures to serve extraneous considerations that do not reflect the common good.
Before elections, governments that operate with no fixed electoral calendar (a situation more typical in parliamentary than presidential systems) may try to extend their terms of office by postponing elections for as long as possible, as has frequently occurred in Israel. (37) Similarly, governments might take drastic measures to influence the upcoming election's results. (38) The greater the fear that the political party in power will not get reelected, the greater the risk that the caretaker or lame-duck administration will adopt daring measures in the hope that, if the measures succeed, they will prove fruitful in the upcoming elections. On the other hand, the party in power may believe it has nothing to lose if its measures fail, since it is presumed to lose the elections in any case.
The fear of extraneous considerations is especially high when it is clear that the prime minister or key figures in the government cannot be reelected by the people, commonly because of an illness, criminal offense, or constitutional term limits. This fear is magnified when the key governmental figures are not deeply affiliated with their political party, and thus are not particularly interested in an election victory for their party's successors. Insight from game theory provides an analogous example: unlike a player who is contemplating extended or repeated opportunities for gain, a player engaged in a one-time or last-term game will choose the best individual strategy over one that is socially optimal. (39)
While agency difficulties appear even before elections, they are largely manageable because of the impending elections, which typically constrain even last-term executives who identify themselves with their parties. The concern is greater in a post-election period, after the government has lost power. In such situations, caretaker or lame-duck governments may implement policies without concern for the consequences of their actions. After all, the regular mechanism of democratic checks and balances, in the form of the citizens' vote, no longer applies to them. (40) Moreover, these governments know that they will not have to deal with the consequences of their actions, as responsibility is transferred to the administration being sworn in to office. These midnight actions may involve waste, imprudence, unilateral controversial actions, entrenchment of policies, division of loot, and even leaving of "scorched earth." (41)
Even when the ruling party apparently remains the same in parliamentary systems, one cannot ascertain the composition of the government or its underlying principles until it takes office and has formed a coalition. Thus, though the agency concern is mitigated if the ruling party remains the same, it does not vanish. The same may be true of a president's successor from the same party, who may have a different agenda than the lame-duck president, though the data does suggest that midnight actions of lame-duck presidents are typical when a change of party occurs. (42)
B. The Democratic Deficit
Caretaker and lame-duck administrations pose a democratic challenge no less than an agency one. In a parliamentary system, there are no separate elections for the executive branch of government. Rather, parliamentary elections indirectly determine the composition of the executive. The mandate of the government stems from the elected representatives in parliament and is dependent on their continued confidence. (43)
This Article defines a caretaker government as a government functioning in a parliamentary system in the interregnum following elections and before the formation of a new government, or a government whose term has ended prematurely and is functioning until an alternative government is formed. The term of a government may end prematurely as the result of a loss of parliament's confidence or if parliament is dissolved. Loss of a parliament's confidence can arise from numerous causes: elections that have redistributed governmental power, an explicit vote of no confidence by a parliament, failure to pass a budget law, or dissolution of the governmental coalition. Even if a caretaker government came about for reasons other than no confidence (such as the death of the prime minister), once a caretaker government is formed, there is no longer any practical significance to expressions of no confidence, since the aim of such a motion is to compel the resignation of the government. Therefore, the prevailing practice in parliamentary systems is not to express no confidence in a caretaker government. Moreover, countries that treat the death or incapacitation of a prime minister as a cause for caretaker governance have expressed their view that the prime minister's identity is so vital that his or her replacement must actively regain parliamentary confidence. When the government became a caretaker because of the dissolution of parliament, rather than an explicit vote of no confidence, then the government no longer has a legislative body to account to.
Without parliament's confidence, the government's democratic legitimacy is severely weakened. The limited democratic legitimacy the caretaker government does enjoy is due to the imperative to prevent a political void and ensure continuity. (44) Furthermore, if every caretaker government suffers from a democratic deficit, a post-election caretaker government suffers it the most. Once the electorate has spoken, its wishes must not be thwarted. (45)
Lame-duck presidents suffer from democratic deficit too. But it occurs later than in parliamentary systems since presidents do not rule based on parliamentary confidence. Only after elections have been held and their successors have been named does such democratic deficit occur in presidential systems. (46) This is why this Article defines a lame-duck president as a president serving after elections, when it is clear that the incumbent is not continuing for another term. Only at such time, does the president suffer from the combined challenges of agency and democratic difficulties.
C. Efficiency and Instrumental Concerns
Despite the agency and democratic challenges, stability and efficiency in the executive branch of government is vital, especially during transitions. The Founding Fathers of the U.S. Constitution addressed this issue when writing:
Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy. (47)
This continuity concern supports treating transitional governments as enjoying the same powers as any regular government.
Other arguments favoring this position are practical. For example, it is very difficult to determine whether an act by a caretaker or lame-duck government is motivated by extraneous considerations or by a desire to continue regular and legitimate governmental activity. Some even adopt a paternalistic approach, suggesting that ignoring the electorate might actually help the government to make the best decisions for the people, even if these decisions are not popular ones. Some also contend that the government should be allowed to tie "loose ends," and that the last-minute pressure serves as a catalyst for it to do so. It is even claimed that, in certain conditions, the appointments and regulations of a caretaker or lame-duck government can stimulate public discussion by putting opposing views on the agenda of the newly elected administration. (48) This position thus maintains that instrumental justifications support leaving these interim governments fully authorized to handle state affairs.
D. Comparative Experience with Regulating Transitional Governments
In view of the complex nature of caretaker and lame-duck governments, one would expect the law applicable to such governments to minimize the dangers of agency difficulties and democratic deficits, yet provide for continuity in administration. However, an examination of comparative-law literature reveals that the topic is barely discussed. (49) Where a legal system does decide to treat the subject, as is common in parliamentary systems that formed part of the Commonwealth or were influenced by British law, caretaker authority is usually treated through constitutional conventions alone, which are not enforceable in courts. (50) In the United Kingdom, Australia, New Zealand, and Canada, these conventions are even codified in formal documents, such as cabinet manuals or guidelines on the conduct of government during election time. (51)
Why is the topic, treated through constitutional conventions, nonenforceable in court? Even countries with caretaker conventions presume that caretaker governments enjoy the same full constitutional authority as any regular government. (52) The conventions thus provide flexible, nonenforceable tools that guide caretaker governments' discretion in the exercise of their authority. The conventions do not dictate any particular course of action, but rather set standards for governments' behavior. Conventions are appropriate for regulating caretaker governments as "conventions are about defining or restricting the exercise of formal powers that exist in law but are circumscribed in practice." (53) Furthermore, conventions by their nature are flexible and adaptable to changing circumstances. (54)
What is the content of these caretaker conventions? These conventions usually embody the principle of restraint. That is, a caretaker government must act with restraint and defer any substantial business to the next regular government, unless the issue is routine or urgent. When the issue cannot be delayed, caretaker governments are instructed to consult with the opposition. If the identity of the next government is known, then the caretaker government might be instructed to follow the advice of the incoming administration, even against its better judgment. (55)
Despite the emergence of such caretaker conventions, the literature on the subject in these countries is sparse and does not explain why caretaker governments should be distinguished from regular governments or why the conventions are tailored to achieve those purposes. Nonetheless, the conventions seem to work as, overall, there are no major reports of abuse of caretaker power in these countries. (56)
In contrast, no such conventions developed in the U.S. presidential system to deal with lame-duck presidents' authority. On the contrary, there are numerous articles devoted to documenting the abuse of lame-duck U.S. presidents' power. (57) The question arises: Are these abuses inherent to the nature of presidential systems, or can they be attributed to the lack of development of caretaker conventions? Israel provides an interesting case study in this regard. Though Israel is a parliamentary system, no constitutional conventions restricting caretaker power developed within it, and it provides numerous instances of abuses of caretaker power. (58)
Israel had the opportunity to develop or recognize these caretaker conventions. Instead, it opted to explicitly reject them. In the 1976 major coalition crisis that eventually led to an election and the rise of the Likud Party to power for the first time since the state was founded, the government appointed a public committee to investigate the regulation of caretaker governments. (59) This committee, known as the Berenson Committee after Justice Tzvi Berenson who served as its head, recommended that a caretaker government in Israel enjoy the same powers as a regular government. It explicitly rejected the convention of restraint developed in other parliamentary systems. In the words of the Committee:
For practical reasons and given the country's special circumstances, the committee decided that restricting the actions of a caretaker government could cause an excessively drastic shift from a regular government to a caretaker government, impair the administration's proper functioning, and tie its hands from carrying out vital operations of state institutions in the event of a sudden crisis. Vague phrases like the "regular course of affairs" cannot guarantee the necessary degree of certitude for proper constitutional activity. (60)
The frequency of caretaker governments in Israel and their long terms in office seem to support this position. But, this rejection of caretaker conventions led to abuse of Israeli caretaker governments' power. This abuse is atypical of parliamentary systems with caretaker conventions, even when these governments reign for long periods.
Into this vacuum in the regulation of Israeli caretaker governments stepped the Israeli Supreme Court. It decided to treat the issue of caretaker authority as a justiciable matter, in contrast to both other parliamentary systems, which treat the issue through conventions, and the U.S. presidential system, which leaves the field wholly unregulated. (61) In the following Parts, this Article examines the court's jurisprudence in the field and explores its lessons regarding the possibility of treating this topic as justiciable. In particular, the Article examines whether the court's jurisprudence is a success story or is proof that the issue cannot be regulated by the courts.
III. TREATING CARETAKER ACTION AS JUSTICIABLE
While Israel's Basic Law: The Government, which forms part of Israel's formal constitution, (62) merely states that a caretaker government continues "to carry out its functions until the new Government is constituted," (63) the constitution does not explicitly define caretaker powers. Instead, courts addressed this issue once abuse of caretaker power became noticed and prevalent. This Article suggests that Weiss, (64) the landmark Israeli ruling on this subject, was later implemented in three distinct spheres: (1) peace negotiations, (2) public-sector appointments, and (3) the distribution of material goods. This Article further argues that, although the courts use uniform rhetoric when applying Weiss and seem to employ the same standards when evaluating each of these spheres, their rulings show differences in their de facto treatment of these divergent spheres of action. Furthermore, this Article examines both Israeli and comparative attitudes toward each of the three spheres and finds no support for Israel's diverse treatment of peace negotiations, on the one hand, and public-sector appointments, on the other. In contrast, the unique judicial treatment of the sphere of distributing material goods to the public during transitional times finds explanation and support in this Article. The next Part will discuss whether this difference in Israel's jurisprudence with regard to peace negotiations and public-sector appointments amounts to a troubling inconsistency or whether it has adequate justification. This in turn may reflect on courts' capacity to regulate caretaker action.
A. Conducting Peace Negotiations
1. The Weiss Decision
After the Berenson Committee Report, the next important milestone on the subject of caretaker governments' powers was the Weiss decision. While the Berenson Committee of the late 1970s recommended leaving caretaker authority aligned with that of regular governments--that is, with no special restrictions--the Weiss decision of the early 2000s set standards for legitimate caretaker behavior.
Weiss was handed down during Prime Minister Barak's administration, when the prevailing law provided for direct elections to the office of prime minister. (65) On the eve of Barak's departure for the Camp David conference in early July 2000, right-wing political parties deserted the government, leaving Barak with the support of fewer than thirty Knesset members. (66) A majority of fifty-four to fifty-two (with seven abstentions) in the Knesset passed a no-confidence motion against the Prime Minister on July 10, 2000. (67) Yet the government did not fall because the motion fell short of an absolute majority (sixty-one Knesset members). The Second Intifada uprising, also known as the Al-Aqsa Intifada, broke out shortly thereafter in September 2000. (68)
According to the court in Weiss, "The negotiation [for peace with the Palestinian authority] and its content are a subject of sharp debate in Israel. Against this background--and against the background of other internal matters--the Prime Minister, Mr. Ehud Barak, resigned from his position as Prime Minister." (69) Direct elections for the office of prime minister were scheduled for February 6, 2001. (70) Despite Barak's resignation, his government continued to conduct peace negotiations with the Palestinians. (71) These negotiations started many months before the resignation and continued as late as twelve days before the elections, with the goal of achieving an agreement before elections. (72)
In a petition to the High Court of Justice, Professor Hillel Weiss argued that it was unreasonable for a government to conduct such fateful negotiations involving painful territorial concessions so close to the elections without the support of the Knesset. (73) A remedy was sought that would order the government to stop the negotiations until a new government formed following elections.
In a judgment delivered by President Aharon Barak, the High Court of Justice dismissed the petition on the merits. (74) It was unanimously ruled that a caretaker government enjoys the same powers as any regular government. (75) Six of the seven justices added that, in exercising its authority, a caretaker government enjoys a narrower range of "reasonableness" discretion than a regular government, at least in certain matters. (76)
The justices, however, were divided in their reasoning, as well as on the outcome of the judgment. Six of the seven justices favored dismissing the petition, but only four of them based their dismissal on the merits. (77) Two others, Deputy President Shlomo Levin and Justice Yitzhak Zamir, cited threshold causes that could be described as lack of justiciability and therefore refrained from legitimizing the government's actions on the merits. (78) Justice Yaakov Turkel, in a minority opinion, opted to accept the petition because the government failed to show any specific urgent need to conduct the negotiations twelve days before the elections. (79)
In the majority opinion, President Barak held that the Basic Law: The Government adopted the principle of continuity by allowing the outgoing government to function until a new government is formed, and the Basic Law does not confine the powers of a caretaker government to the regular course of affairs. (80) The court also noted that the Berenson Committee had rejected the idea of limiting the powers of a caretaker government, both because it was impractical and because it would make it impossible to properly deal with a sudden crisis. (81) The court therefore ruled that limiting the powers of a caretaker government should be done, if at all, by way of legislation and not by judicial decision. (82) The court further noted that no constitutional convention ("custom") has developed in Israel that restricts caretaker action. (83)
At the same time, the court ruled that the nature of a caretaker government would be reflected in its exercise of governmental discretion. (84) In exercising its authority, a caretaker government has a narrower range of reasonableness than a regular government. (85) The criterion was that a caretaker government must act with restraint, unless there is a "vital public need for action." (86) Even if it is essential to take action, the caretaker government must act with proportionality in fulfilling that need. (87) The court emphasized that the test is not whether an action is regular or extraordinary, but whether the circumstances required action or restraint. (88) Exercising restraint is the default position, especially after elections when a new government is being formed. (89)
Rather than rule it nonjusticiable, the court concluded that there was a "vital public need" to conduct peace talks twelve days prior to elections, a need that prevailed over the government's limited mandate. (90) While Basic Law: The Government does not explicitly address the realm of foreign relations, the court held that this issue was within the government's authority since the state's executive branch holds both residual power and the authority to declare war. (91) The court treated foreign relations and state security as political matters, in which every government is entitled to broad discretion. (92) It would be up to the Knesset and the public, not the court, to oversee the government's actions in these sensitive spheres. (93)
In failing to intervene, the court relied on, inter alia, the declaration of the Attorney General that, if Israel and the Palestinian Authority were to sign an agreement, its international as well as internal validity would be explicitly contingent upon its ratification by the Knesset (94)--a validity clause which raises questions about the role of caretaker governments in international relations, addressed later in the Article. (95)
The Weiss decision thus followed the Berenson Committee's position in holding both that caretaker governments enjoy the same authority as regular governments and that the criterion of the regular course of affairs should not be the measurement for the legitimacy of caretaker action. However, it deviated from the Committee's position in its willingness to regulate caretaker action such that caretaker governments must act with restraint unless there is a vital public interest that requires action. What is of further interest is that the court did not wait for the issue to be regulated by amendment of the Basic Law but rather took upon itself the role of judging the legitimacy of caretaker action.
2. The Livnat Decision
The same issue that was addressed in Weiss resurfaced in December 2008 when the caretaker government headed by Prime Minister Olmert resumed peace negotiations with Syria and the Palestinian Authority, including discussions about the Golan Heights and Jerusalem. (96) Negotiations were conducted even though Olmert had resigned as prime minister, and elections were pending because Foreign Minister Tzipi Livni, his replacement from his party, had failed to form a new government. (97) Knesset member Limor Livnat petitioned the High Court, challenging the "reasonableness" of conducting peace negotiations under these circumstances. (98) The court dismissed the petition, relying directly on Weiss. (99)
This later judicial decision interpreted Weiss as allowing a caretaker government to conduct peace negotiations. (100) Furthermore, in Livnat, the court did not make its decision contingent on the government's commitment to include an explicit stipulation in the agreement (if reached), stating that its international validity is dependent on the Knesset's approval. (101) Instead, the court focused only on the agreement's internal validity: "By law, the government's decisions regarding a change in the status of the Golan Heights or Jerusalem require Knesset's approval by a majority of its members." (102) Similarly, the court dismissed on the same grounds a petition filed the same month against the release of Palestinian prisoners for the Muslim Eid al-Adha (Festival of Sacrifice) holiday as a good-faith gesture in the context of peace negotiations with the Palestinians. (103)
In summary, while Weiss established the principle that a caretaker government must act with restraint unless there is a "vital public need for action," the court de facto treats peace negotiations as always fulfilling the "vital public need" requirement, even when negotiations are conducted just days before elections. The court does not view the issue as nonjusticiable, but rather decides on the merits that peace negotiations are allowed. The court also does not probe the concrete circumstances surrounding each negotiation, nor does it suggest that, in principle, it is unreasonable for a caretaker government to conduct international peace negotiations, which would have made the Weiss outcome an exception to the general rule. In failing to firmly establish that principle, the court's rulings have been interpreted for the convenience of caretaker governments, who repeatedly accelerate peace negotiations during their caretaker term, relying on the legitimacy granted to those actions by the Israeli Supreme Court. In this sense, the court's rulings function in the way that James Bradley Thayer has warned: they shift responsibility from the elected branches to the court and inhibit, rather than enhance, democratic accountability. (104)
3. Comparative Experience with International Agreements
Israeli governments did not shy from embarking on military operations or, conversely, accelerating peace negotiations during caretaker periods, as discussed above. (105) Furthermore, the Israeli Supreme Court approved accelerating peace negotiations, believing there was always a vital need to negotiate for peace, even during caretaker periods. (106) Reaching international agreements during a transitional administration is especially problematic since the state is obligated under international law to abide by the international agreement even if a change of administration has occurred, unless the other parties to the agreement consent to changing the agreement. (107) In fact, the behavior of Israeli caretaker administrations in the international arena stands in sharp contrast to the prevailing norm in the parliamentary model of caretaker governments. Under this model, caretaker governments are constrained by constitutional conventions from committing the state in the international arena. (108) Thus, for example, when Winston Churchill headed his caretaker government in 1945, he attended the Potsdam Conference that held international discussions between the Three Powers--the United States, the Soviet Union, and Britain--regarding the future fate of the defeated Germany. (109) As the head of a caretaker government, Churchill felt obliged to bring the leader of the opposition and shadow prime minister, Clement Attlee, as well as the shadow foreign secretary. (110) Attlee later replaced Churchill in the talks as the Prime Minister of Britain. (111)
Some authors argue that U.S. presidents postpone concluding international agreements, leaving them for the president-elect to decide, unless the incoming administration consents to the agreement. (112) But, de facto, there are numerous examples of abuse of lame-duck power to conclude international agreements, even against the known wishes of the president-elect. Already during the early republic, lame-duck President Adams ratified the treaty with France, titled the Treaty of M6rtefontaine, (113) by relying on lame-duck senatorial votes. Adams was able to garner the majority by convincing senators that without the ratification, Thomas Jefferson would reach a new treaty less favored by them. (114) In more recent times, President Carter signed in his last day in office the Algiers Declarations in return for the release of American hostages held in Iran. This conclusion of the crisis through negotiations rather than force ran against the declared policy of President-elect Reagan. (115) President Clinton signed the Rome Statute as a lame duck despite the controversial nature of the treaty. This act was so unacceptable to President-elect Bush that he made the unprecedented move of "unsigning" the treaty. (116) Most recently, President Bush signed agreements with the Iraqi government against the wishes of President-elect Obama. (117) These are just a sample of examples of abuse of lame-duck power to set facts in the international arena against the known wishes of the president about to enter office.
Article II, [section] 2 of the U.S. Constitution requires presidents to ratify international treaties by receiving the consent of two-thirds of the Senate, thus requiring the cooperation of two branches of government in order to undertake international obligations. (118) This bilateral mechanism may reduce the democratic deficit of having a lame-duck president make commitments in the international arena, though it does not eradicate the problem because the president may rely on senatorial consent composed of lame-duck Senate members. (119) U.S. presidents, however, routinely circumvent this constitutional requirement of receiving two-thirds senatorial approval for international treaties by treating many international agreements as "congressional--executive agreements" rather than "international treaties." (120) The presidents do not seek two-thirds of the Senate's approval for congressional--executive agreements, but rather treat such agreements as requiring the consent of both houses in simple majorities. (121) Presidents thus have maneuvering power to decide what route of ratification is preferable to them: is it easier for them to garner simple majorities in both houses or a two-thirds majority in the Senate? The answer may vary according to the factual question of which political party controls which house. Reaching international agreements without two-thirds of the Senate's approval during lame-duck periods only exacerbates the democratic-legitimacy problem of having a repudiated president commit the United States to certain partisan policies in the international arena.
B. Appointments and Actions in the Public Sector
The question of caretaker power has also arisen in Israel in the context of public-sector appointments. This Article separates the discussion into three categories: (1) public-sector appointments made when the government does not occupy a majority in the appointing body, (2) appointments made when the government has no influence whatsoever, and (3) appointments made when the government has a decisive influence. The judicial decisions used the same rhetoric of Weiss in all three categories and surprisingly arrived at the same conclusion in each: the Israeli Supreme Court prohibited appointments during caretaker periods. That is to say, even though the Weiss decision allowed for peace negotiations during caretaker administration, the court prohibited public-sector appointments across the board during caretaker administration. This applies even when the government has no power to intervene in the appointment. After discussing Israel's jurisprudence with regard to public-sector appointments, this Article discusses comparative treatment of such appointments.
1. Public-Sector Appointments When Government Representatives Do Not Occupy a Majority in the Appointing Body
The Israeli Supreme Court was asked to address the question of whether a caretaker government is empowered to appoint chief rabbis and judges. In both cases, the court decided to postpone the appointments until the formation of a new government, even though the government's representatives fell short of a majority in the appointing bodies, as discussed below.
At around the time of Weiss, the National Religious (Mafdal) Party petitioned, challenging the appointment of chief rabbis and members of the Chief Rabbinate Council during the term of a caretaker government. (122) The chief rabbis head both the Great Rabbinical Court and the Chief Rabbinical Council, which enjoy, among other powers, state authority in issues of marriage and divorce of Jewish citizens and inhabitants, kashrut (kosher status) of food, and authorization of rabbis. (123)
Relying on Weiss, the court (with a different composition of justices) reached a completely different outcome than that reached in Weiss. It ruled that, because the appointment of chief rabbis was "final" for a lengthy period of ten years, the decision should wait until the formation of the new government. (124) The court stated that it was more important to prevent a caretaker government from appointing chief rabbis than to uphold the letter of the statute concerning the election date for chief rabbis. (125) The court also made a distinction between this case and Weiss, stating: "In the regular course of affairs, the selection of Rabbis is not reversible; there is something final about that. This makes the situation different from the circumstances dealt with in Weiss [where the peace agreement may be made contingent on Israeli Parliament's approval]." (126) Thus, despite the fact that the government could not manipulate the timing of the appointment of chief rabbis, which is dictated by law, (127) and despite the fact that government representatives are only a minority on the appointing committee, (128) the court banned the appointment during caretaker administration.
A similar issue arose during the term of the caretaker government headed by Prime Minister Olmert. Minister of Justice Daniel Friedman sought to appoint judges to courts suffering from a severe shortage of judicial manpower. (129) Ostensibly, this satisfied the Weiss criteria of "vital public need" for action during caretaker administration. To this end, the Minister of Justice sought to convene the Judicial Appointments Committee. (130) By statute, of the nine members on the Committee, two are ministers and two are Knesset members. (131) The other members are professionals: three justices (one of which is the president of the court) and two representatives of the Israeli Bar Association. (132) Significantly, in the wake of a 2008 amendment to the Courts Statute, a majority of seven of the nine committee members was needed to appoint justices to the Israeli Supreme Court. (133) The professional members of the Committee therefore have the power to block any appointment that they consider unworthy.
Despite this composition, the president of the Israeli Supreme Court, together with two other justices sitting on the Committee, opposed convening the Committee on the grounds that judges should not be appointed during the term of a caretaker government. (134) Minister of Justice Friedman criticized President Dorit Beinish's decision, as she was appointed during a caretaker government's term. He claimed that her position stemmed from the fact that he and President Beinish had bitterly disputed judicial policy and the court's role in a democracy. (135) In other words, Friedman viewed Beinish's position as politically motivated.
The court, sitting as a High Court of Justice, dismissed a petition challenging the Committee's decision not to convene during caretaker period. (136) The court explained that the Committee's decision was not "unreasonable." (137) Although the court accepted that there was a "vital public need" for appointment, it refrained from intervening because "the appointment of new judges is a subject at the center of public political controversy." (138)
The decisions regarding the appointment of both chief rabbis and judges show that the court treats caretaker governments as different from regular ones. It strives to inhibit their actions to appoint important public figures that exercise discretionary powers over Israel's public life, so that these appointments will be conducted by a government with a fresh mandate from the people.
2. Appointments in Which the Government Has No Influence
The court's efforts to prevent public-sector appointments during a caretaker period are so far-reaching that this principle was also applied to cases in which the government had no influence on the appointment. For example, the National Labor Court entertained the question of whether a director of Arabic-language television broadcasts could be appointed during the term of the caretaker government headed by Prime Minister Olmert. (139) As with other professional civil-service appointments, a tender is issued for the appointment of a director for Arabic broadcasts; the government does not make the appointment. (140) If the tender fails to produce suitable candidates, a search committee makes the appointment. (141) In this case, the conflict of interest that arose in the search committee proceedings was not the reason why the Labor Court disqualified the appointment. Rather, it was because the appointment was set to occur during the term of a caretaker government, notwithstanding the fact that the government was not empowered to make the appointment or to intervene in the appointment process, and no evidence of influence or an attempt to influence the appointment was produced. (142) This decision of the National Labor Court demonstrates that courts have understood the Israeli Supreme Court's policy to require refraining from making appointments in the public sector during caretaker administration.
3. Appointments in Which the Government Has Decisive Influence
The court prohibited the appointment of religious council members during caretaker periods based on the government's decisive control of the appointment process. The court expressed great concern that the government's considerations in making its appointments would be improper, or would at least be viewed that way by the public. (143) It seems that the court attached importance to leaving the appointment to a government representing the public's most up-to-date opinion. Thus, an appointment in which the government exercises a decisive influence is best left to the incoming government whenever possible. (144)
The message emerging from decisions regarding appointments in the public sector is clear: public-sector appointments should not be made during a caretaker government's term of office. Judges, (145) chief rabbis, (146) members of religious councils, (147) a director of Arabic television (148)--and by extension, important officials in the judicial branch of government, civil service, and local authorities--are among the prohibited categories. The reasons may vary: to make sure the choice reflects the public's up-to-date opinion, or to prevent the appearance that the appointment is motivated by improper considerations, especially if the choice would be final or irreversible. The court adheres so strongly to this idea that it applies it even when the government plays no role in an appointment or is only a minority on the appointing body. (149) In the last two cases, the legislature ostensibly expressed its opinion that the appointment was not political. Nevertheless, the judicial branch took a different approach. This total ban on public-sector appointments may lead to a paralysis of state affairs.
The judicial message regarding public-sector appointments is also the reverse of the message in the peace negotiations context. The court expresses its views that caretaker governments are different creatures than regular governments: one should be wary both of their democratic legitimacy and extraneous motives, and thus curtail their actions.
4. Comparative Experience with Public-Sector Appointments
Israeli administrations are not alone in attempting to complete public sector appointments during caretaker periods. In fact, U.S. political history is full of lame-duck appointments as well. However, while Israeli courts prohibit and rescind such caretaker appointments, there is no one to effectively guard against such appointments in the United States.
Lame-duck appointments were already occurring in the United States in the early days of the republic. The most famous U.S. constitutional decision, Marbury v. Madison, established the power of judicial review over statutes. (150) Less known is the fact that the landmark decision dealt with the outrageous sweeping judicial appointments John Adams made while he was a lame-duck president. (151) Adams intended to pack the judiciary with judges who were affiliated with or identified with the Federalists in the face of the already known Republican electoral takeover of both the presidency and Congress. (152) To this effect, Adams also passed the Judiciary Act, which enjoyed the partisan support of Federalist votes, and created many new judicial positions that he hurried to occupy with his appointees. (153) In addition, Adams also appointed many members to the executive branch, filling military, diplomatic, and sundry positions. (154)
President Thomas Jefferson, who followed Adams, treated these last minute appointments as illegitimate and attempted to undo them through various drastic measures. These methods included refusing to deliver the signed commissions to the prospective appointees, repealing the Judiciary Act, impeaching specific members of the judiciary, and abolishing the 1802 Supreme Court term. (155) Among his last-minute appointments to the judicial branch, President Adams appointed William Marbury as a justice of the peace in the last forty-eight hours of his administration. (156) Alas, his Secretary of State, John Marshall, failed to deliver the signed commission to Marbury before the end of Adams's term. (157) Jefferson refused to deliver the commission, and Marbury petitioned the Court to honor the commission appointing him a justice of the peace. (158) Though John Marshall--former Secretary of State and appointed Chief Justice by the lame-duck Adams--declared that Marbury was entitled to the commission, Marbury lost the case because the Court decided that it was not authorized to grant him the relief sought. (159)
These lame-duck appointments to the public sector did not end in the first decades of the republic. Rather, a lame-duck administration typically promotes its people into key positions in the civil service to entrench its policies after it no longer governs. On average, over one hundred employees are transferred from political to tenured positions in U.S. administrations during lame-duck periods. (160) The lame-duck president may also fill vacancies or, conversely, eliminate positions, depending on his or her substantive attitude toward a specific administrative agency and its programs. (161) As a result, the incoming president may find it even more difficult to control the supposedly "professional" merit-based civil service and to encourage it to promote the new presidential agenda. (162)
It should be noted that last-minute appointments to the public sector are not cut of one cloth. Rather, the President must gain the Senate's confirmation for some of these appointments, including Justices of the Supreme Court. (163) Supposedly, this interbranch cooperation strengthens the legitimacy of lame-duck appointments. This assertion must be qualified, however, since those lame-duck appointments usually fail if the Senate is controlled by a different political party, rather than that associated with the lame-duck president. A Senate controlled by a different political party prefers to leave the vacancies for their president-elect to fill. (164) Thus, lame-duck appointments that do gain the Senate's approval may be of two types. The first presents a partisan move of the lame-duck president that succeeds solely because of partisan support of his or her party in the Senate. This type of lame-duck appointment should hardly be viewed as legitimate, despite the interbranch confirmation process. The other type is an appointment that succeeds because it involves a moderate candidate, perhaps even one identified with the political party that is about to gain the presidency. The lame-duck president promotes this appointment as the "lesser evil," that is to say, better to influence the identity of the candidate to be appointed from the rival camp than have no say at all in the appointment process. The latter will occur if the vacancy is left for the president-elect to fill. Those appointments may be treated as bipartisan and garner support from senators of both political parties. (165) This bipartisan type of lame-duck appointment may be viewed as relatively more legitimate because it represents a consensual move rather than an assertion of power that should no longer belong to the lame-duck president.
In contrast to the United States, parliamentary systems, especially those that originally belonged to the Commonwealth, follow conventions under which caretaker administrations refrain from making significant public-sector appointments. (166) These conventions require leaving those appointments for the new incoming government to decide. (167) If there is a vacancy that must be filled, the caretaker government may only make a temporary appointment--including extending the stay of a presiding official--for a few months, so as not to bind the hands of its successor. (168) If a temporary appointment is not possible, or if it is not desirable in light of the public interest, then the caretaker government must gain the consent of either the incoming government or the legislature for the appointment. (169) Obtaining such consent makes the appointment legitimate and consensual rather than partisan. Which governmental branch's cooperation is required differs between various countries. (170)
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|Title Annotation:||I. Introduction to III. Treating Caretaker Action as Justiciable B. Appointments and Actions in the Public Sector, p. 1381-1417|
|Publication:||Vanderbilt Journal of Transnational Law|
|Date:||Nov 1, 2012|
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