Judicial Review of Constitutional Transitions: War and Peace and Other Sundry Matters

Weill, Rivka, Vanderbilt Journal of Transnational Law

C. Distribution of Material Goods to the Public

1. Distribution of Material Goods to the Public

The decision concerning the authority of the Committee for the National List of Reimbursed Drugs (NLRD) to convene on the eve of Knesset elections dealt with the distribution of material goods by a caretaker government. (171) At first glance, the decision is mystifying. The NLRD Committee was banned from convening before the elections but was permitted to convene immediately after the elections, even before a new government was formed. (172) It was further emphasized in the Israeli Supreme Court's decision that, after the elections, the caretaker government was permitted to decide to adopt recommendations of the Committee to expand the NLRD. (173)

How can the court's decision be explained? If the ban on convening the NLRD Committee was based on the government's status as caretaker, this status would not have changed after the elections until a new government was formed. It would have been expected that a caretaker government's actions banned before elections would be even more verboten after elections. (174) In the words of President Barak in Weiss, the range of reasonableness in which a caretaker government is entitled to act "becomes narrower--and the need for restraint and reserve made more necessary--after the elections, and before the elected prime minister begins his term in office." (175) But the NLRD judicial decision allows a caretaker government to perform functions after elections that it is not allowed to perform prior to elections.

Although this was not explicitly stated by the court, this Article suggests that the rationale underlying the NLRD decision was the concern that, if the NLRD Committee and, in turn, the government decided to expand the NLRD before elections, this would have constituted a form of "bribery" and an attempt to distribute material goods in the form of drugs in order to gain electorate support for the existing government. (176) Justice Miriam Naor might have been insinuating this when writing that: "The real conflict is that the government decision, which the petitioners are aiming for, will be rendered before the elections and under the pressure of elections, thereby increasing the chances that the government will accept the NLRD committee's expected recommendation." (177) Since this involved a risk of distribution of material goods as a means of influencing the election's results, the court saw fit to bar the expansion of the NLRD before the elections, but permitted it after the elections when there was no cause for concern that the decision could constitute a form of election bribery. Obviously, the distribution of drugs after elections cannot change election's results that have already been decided.

The decision to expand the NLRD--as opposed to the timing of the expansion--did not call for caretaker restraint in the court's view, since there was a "vital public need" for taking action to save lives. (178) Moreover, this Article suggests that the decision to expand the NLRD did not deviate from the country's regular course of business. Consequently, this action was not significant enough to warrant postponing the action for a new government.

Another example of this category of material goods may be found in the court's decision regarding the timing of submission of investigative committees' reports. Regional Municipality of Modi'in v. Minister of Interior dealt with the question of when investigative committees should submit their reports to the Ministry of the Interior. (179) Because the reports implied change in the boundaries between local authorities and had potential implications for the distribution of income among municipalities, they could have affected the regional elections. (180) Probably for this reason, the court decided that "[t]he committee's recommendations shall not be submitted until after the elections for the local authorities." (181)

Because the court distinguished between pre- and post-election distribution of goods, this Article suggests that if the court believed the government intended to distribute material goods on the eve of elections as a means of indirectly influencing the election's results, the court would prohibit the action before the elections but allow it afterwards, even before the formation of a new government. In principle, this could be within the government's regular sphere of authority; thus, if not for the timing on the eve of elections, it would not have been problematic even for a caretaker government.

2. Comparing Distribution of Material Goods and Public-Sector Appointments

But why is the distribution of material goods different from public-sector appointments? On its face, both constitute distribution of goods on the eve of elections. Yet, the court applies a different law to the two categories. (182) Public appointments must wait until a new government is formed. (183) In contrast, the government may not distribute material goods pre-elections, but can do so post-elections and even before a new government is formed. (184)

This Article suggests that the divergent treatment can be explained by examining the beneficiaries and consequences of each act: a public appointment benefits the appointee; for him or her, it resembles the distribution of goods. Yet the consequences to the public are continuous throughout the appointment period and extend well beyond election time. Thus, the appointment is arguably a way to continue influencing, setting, and even entrenching the government's agenda after the government's caretaker period ends. A public appointment should therefore not be regarded as purely a matter of political hygiene, but should be avoided until a new government is formed.

The distribution of actual material goods, on the other hand, benefits members of the public who receive the good and certainly can influence elections if done near elections. But its effects are usually short-lived; research indicates that people are more affected in their immediate decisions by short- rather than long-term considerations, and thus distribution done years in advance of the next election will probably not influence people's votes. (185) It makes sense, therefore, that the government may distribute material goods to the public as long as it is done after the elections, whether or not a new government has formed.

3. Comparative Experience with Distribution of Material Goods to the Public

Not only do Israeli governments distribute material goods to the public during transition times, but U.S. presidents, too, utilize their power during the end of their presidency to distribute favors and goods to individuals, interest groups, and the public at large. In addition to the exercise of the appointment power already discussed, which often requires the Senate's cooperation, presidents utilize their unilateral pardon power in favor of contested cases. (186) The pardon and appointment powers benefit specific individuals.

Presidents also unilaterally declare vast parcels of land as national monuments and parks. (187) This may already serve as a "bribery" technique to affect the election's results. Indeed, President Clinton turned many acres into nature reserves in order to assist Al Gore in his election campaign. (188) It should be noted, however, that it is more common for presidents to exploit their unilateral power in the ways mentioned after elections rather than before. Two explanations may be offered for this post-election behavior. First, when this behavior is manifested after elections, it is generally intended to affect presidents' "legacy" rather than influence election results already decided. (189) Second, presidents utilize these unilateral powers more after elections when they fear influencing the ballot in unwanted ways if actions are pursued before elections. If their behavior carries the risk of being unpopular, they will wait until after elections to execute their plans. (190)

These last-minute actions are typical to U.S. lame-duck presidents but not to caretaker governments in parliamentary systems. (191) This divergence can be attributed not only to the existence of effective caretaker conventions in parliamentary systems, (192) but also to the fact that, in parliamentary systems, prime ministers typically do not enjoy unilateral powers equivalent to those enjoyed by U.S. presidents. (193) Furthermore, this lame-duck concern about presidential legacy is more characteristic of the "cult of personality" that accompanies presidential rather than parliamentary systems. (194)

This Article concludes by stating that the Israeli Supreme Court stepped into the vacuum caused by the lack of constitutional conventions regarding Israeli caretaker governments. The court will not hesitate to restrict caretaker actions if it believes that the actions should be postponed until a new government is formed, as is the case with public-sector appointments. (195) In this respect, the court functions as a restraining power on Israeli caretaker governments, much like constitutional conventions in other parliamentary systems. (196) But no similar restraining power inhibits U.S. lame-duck presidents. This perspective only makes the Israeli Supreme Court's position on peace negotiations more puzzling. Why does the court permit caretaker governments to negotiate for peace but ban them from making public-sector appointments? Shouldn't one be worried about democratic legitimacy or extraneous considerations when caretaker governments negotiate for peace? Or does the court's position show that regulating caretaker action has or should have limitations bounded by the political question doctrine? In the next Part, this Article proposes and critiques a number of possible explanations for the court's divergent treatment of peace negotiations, on the one hand, and public-sector appointments, on the other.

IV. WHY DISTINGUISH PEACE NEGOTIATIONS FROM PUBLIC- SECTOR APPOINTMENTS?

From the Israeli judicial decisions described above, several rationales may be derived that justify the divergent judicial treatment of public-sector appointments and peace negotiations during caretaker periods. These rationales include: (1) the act's reversibility; (2) the importance of representing the people's most current opinion when making the act; and (3) the justiciability of the issue, including the existence of alternative control mechanisms to the court's intervention. This Part argues that these rationales do not support the contradictory outcome wherein a caretaker government may conduct peace negotiations but may not appoint public-sector officials. Thus, the divergent Israeli judicial treatment amounts to inconsistency. The next Part argues that Israel's experience with judicial review over transitional governments does not prove that this matter should be treated as nonjusticiable. Rather, this Article discusses how a properly designed law applied to transitional governments may lead to better, more consistent results in judicial decisions.

A. Reversibility

The Israeli Supreme Court differentiated between peace negotiations and public-sector appointments, explaining, inter alia, that appointments are not reversible, while peace treaties are, since the latter can be made conditional upon legislative ratification. (197) Does this distinction legitimize peace negotiations by a caretaker government?

1. Distinguishing Signing from Ratification

In allowing caretaker governments to negotiate for peace, the Israeli Supreme Court in effect relied upon the distinction prevailing in contemporary international law between the stages of signing and ratifying international agreements. While in the past it was enough to sign a treaty, the presumption today is that all treaties must be ratified before they become binding by international law. (198) The law changed largely due to the development of democracy and the principle of separation of powers. Historically, the negotiators were the representatives of the Crown, carrying out its orders, and international law did not anticipate a discrepancy between the positions of the ruler and the treaty signatories. (199) In modern times, with the separation of powers, it became apparent that the executive conducting international negotiations might not represent the opinions of the legislature. (200) Therefore, the gap between signing and ratification serves the need for efficient negotiations subject to the veto power of the legislature, as required by the constitutions of many countries. (201)

It should be noted that oftentimes the treaty is both signed and ratified by the executive for purposes of international law, even when the internal law of the country requires its ratification by the legislature. (202) In the latter case, however, before the treaty is ratified by the executive for international law purposes, the executive requests the consent of the legislature as prescribed in the internal law. (203)

2. The Significance of Signing

Does this legal focus on ratification imply that the signing stage is of little consequence? Theoretically, international undertakings could be shirked by nonratification. Indeed, many countries have not ratified the agreements they signed. (204) Nonetheless, this Article argues that it would be wrong to diminish the importance of signing international agreements for several reasons. First, the distinction between the two stages, signing and ratification, primarily applies to multilateral treaties, in which a country is only one of many players. (205) It thus has less bargaining power, especially if it is not an influential state, and it must go home with the proposed draft of the agreement and obtain the approval of the relevant internal institutions, primarily the legislature.

The distinction between the stages in bilateral treaties is more problematic. If the country is dissatisfied with the treaty, it has the prerogative to refuse to become a party to it from the outset. International law recognizes the duty of good faith as a core duty, (206) which means that a country should not sign a treaty when the executive knows that it does not have legislative support to ratify it.

Second, the signing stage per se creates an interim obligation under international law. In accordance with the Vienna Convention, which enjoys the status of customary international law, at the stage between the signing and ratifying, "[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty." (207) This obligation is established only at the interim stage and can be stipulated otherwise in the treaty itself. (208) Moreover, this obligation becomes void if the state indicates that it does not intend to ratify the treaty. (209)

Yet, the very interim obligation gives legal effect to the act of signing an international agreement. In order to avoid these interim obligations, George W. Bush used the unprecedented tactic of "unsigning" the Rome Statute. (210) Interestingly, President Clinton was criticized for signing the Rome Statute as a lame duck. (211)

Third, the final draft of the agreement is usually formulated at the signing stage. After that, ratification is mostly a binary all-or-nothing decision, particularly in the case of bilateral agreements. (212) Of course, if the government knows that it needs legislative approval to ratify a treaty, the legislature's position will have already influenced the content of the agreement. (213) This assumption, however, is problematic in light of the considerations presented below.

Fourth, a decision by the legislature to not ratify an international treaty, which was signed by the government, may damage the state's international reputation and its ability to conduct negotiations in the future, especially bilateral agreements. Therefore, the legislature sometimes approves an international agreement that it would otherwise not have agreed to. (214)

Fifth, the damage to a state's international reputation stemming from a decision not to ratify may be detrimental to its relations with the other contracting state(s). In extreme cases, failure to ratify might also lead to formal or informal sanctions by the international community. This situation is especially relevant when the signatory is a small country and the agreement has major implications for other states. (215)

It is no coincidence that noted writers on the powers of transitional governments caution that these governments must exercise restraint, especially when conducting foreign affairs. (216) In particular, governments must act in cooperation with the legislature in this sensitive area, which calls for stability and continuity. The ability of a country to advance its interests is dictated to a large degree by its reputation for reliability. (217)

This position is also supported by the fact that there is an inherent tension between international law and the basic tenets of democracy. While democracy usually enables the majority to change its statutes (subject to its constitution), under international law a contracting party may not unilaterally retreat from its obligations, even if there has been a change of government in its country. (218) Therefore, great care must be taken to ensure that the caretaker government does not overstep its authority, particularly in the realm of foreign, as opposed to internal, affairs. While a new government has many tools to overturn recent decisions in the realm of internal affairs, they are less available when it comes to the conduct of foreign affairs. (219)

Thus, the Israeli Supreme Court's distinction--between public-sector appointments, which it treats as final, and international agreements, which it treats as provisional because they may be subject to the legislature's approval--is not convincing. All of these arguments support a decision by the Israeli Supreme Court to restrain caretaker governments from engaging in international negotiations. This Article now examine whether the Israeli peace process may suggest a different conclusion.

3. The Israeli Peace Process

In the context of an Israeli peace treaty, how would these considerations be expressed? Had the peace treaty discussed in Weiss been signed, it would have been difficult for the Knesset to extricate itself from the bilateral agreement, both for fear of damaging its reputation and because of the possibility of international sanctions. "Unsigning" the treaty would likely have further eroded its relations with the Palestinian Authority. It is therefore questionable that making the ratification of the agreement subject to its approval by the Knesset would have been enough to overcome the legitimacy problem of having a caretaker government that did not enjoy the confidence of the Knesset negotiate and sign the peace agreement.

Moreover, the reality of peace talks in the Middle East is such that negotiations often begin where previous talks ended. (220) Thus, for instance, Attorney General Elyakim Rubinstein warned Prime Minister Barak's government in early 2001 that it was inappropriate to conduct negotiations during a transition period. (221) According to him, Israel's experience in reaching tentative understandings in negotiations is that '"an understanding once reached cannot be taken back', meaning it is very difficult to go back on something perceived as a concession in the negotiations." (222) It should be emphasized that the warning was given regarding the very same peace negotiations that were at issue in Weiss. Similarly, more recently, President Obama made it clear to Prime Minister Netanyahu that "[w]e won't start the negotiations from scratch, we will not take the historical record and toss it aside." (223) According to the same source, "There's an historical record of all past negotiations." (224) It is therefore important that Israel's negotiators have a mandate from the electorate to negotiate.

Furthermore, under Israel's law, once the Israeli Government has ratified a treaty, it becomes binding upon the State of Israel under international law, even if the Knesset opposes the treaty. (225) Israel has also stated this policy in a written declaration to the United Nations:

   (A) [T]he legal power to negotiate, sign and ratify international
   treaties on behalf of Israel is vested exclusively in the
   government of Israel and is in the charge of the Minister for
   Foreign Affairs; (B) where the Knesset has given its … 

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Judicial Review of Constitutional Transitions: War and Peace and Other Sundry Matters. Contributors: Weill, Rivka - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 45. Issue: 5 Publication date: November 2012. Page number: 1381+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 2012 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.