Checks, Balances, and Appointments in the Public Service: Israeli Experience in Comparative Perspective

Article excerpt

This article explores the appointment process for government ministers in the Israeli cabinet and senior executive officials in the Israeli public service. It examines the institutions that are supposed to exercise oversight and check these appointments, finds them wanting, and proposes an alternative. In the United States, with its constitutional system of separation of powers, the president's power to appoint is checked by the Senate's active role in exercising its "advice and consent" powers.(1) In Israel, with its parliamentary system, there is no such robust check on the appointment power of the prime minister and his ministers. In theory, this power is subject to Knesset approval,(2) and the fused powers of a parliamentary system foster accountability and responsible government in ways that a presidential system with separation of powers does not. Yet, as we will see, under some conditions--and conditions that prevail in Israel--this benefit is more apparent than real. It does not work in Israel, at least under conditions of hyperfragmentation in the governing coalition.

Problems with weak appointments reached crisis proportions in the 1990s and, as a consequence, the Israeli High Court intervened to review and reject several executive appointments. In a sense, the Court assumed a function similar to the "advice and consent" powers of the U.S. Senate in overseeing these appointments. Although some have heralded this development as a triumph of the "rule of law" over naked politics and see it as a means of protecting against "unreasonable" appointments (Barak 1993; Gavison, Dotan, and Kremnitzer 1999; Landau 1989; Rubinstein 1991; Zamir 1993), this article argues that this emerging new role for the Court is both inappropriate and counterproductive. It is inappropriate because judicial intervention provides a legal solution where a political solution is better suited. In the long run, such intervention runs the risk of weakening both the judiciary and the political process. Certainly, horizontal accountability by means of checks on the power of executives to appoint is needed in all modern government (O'Donnell 1999), but the solution to this problem in Israel is to strengthen Knesset oversight, not judicial oversight. More generally, this article explores accountability in the executive-appointment process in parliamentary systems under conditions of hyperfragmentation. In so doing, it reveals factors that challenge conventional wisdom about the advantages of oversight and accountability in parliamentary over presidentialist systems.(3) Indeed, it ends by calling for a presidentialist solution to the problem, a proposal that is consistent with several recent trends in the Israeli government structure.

This article is organized as follows: Part I explores the debate about the strength of public-service appointments in parliamentary and presidentialist systems and finds that parliamentary systems generally earn higher marks for the quality of executive appointments. However, it also shows that this advantage may not apply in situations where there is hyperfragmentation among the parties in the governing coalition. Part II presents several case studies of the appointment process in Israel in the 1990s. These case studies reveal evidence of substantial irresponsibility in the appointment process, as well as a lack of meaningful oversight and checks on the process. Part III explores the Supreme Court's emerging role in trying to counter this development, arguing that although the problem is both real and serious, judicial intervention is fraught with danger both for the Court and the rule of law on the one hand, and for responsible party politics on the other. Part IV outlines an alternative approach--strengthening the role of the Knesset--to cope with the problem of irresponsible political appointments.

Separation of Powers and Appointments in Public Service

In a 1991 article, Fred Riggs makes a compelling argument for the need for comparative analysis in the study of public administration (474). …