Public Responsibility of Elected Officials in Israel: Crossing the Bounds of ReasonablenessOri Arbel-Ganz teaches in the Department of Political Science, Bar-Ilan University. David Nachmias teaches at The Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Centre, Herzliya, Israel.

Ori Arbel-Ganz teaches in the Department of Political Science, Bar-Ilan University. David Nachmias teaches at The Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Centre, Herzliya, Israel.

Click to increase image sizeClick to decrease image size

Notes

Ori Arbel-Ganz teaches in the Department of Political Science, Bar-Ilan University. David Nachmias teaches at The Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Centre, Herzliya, Israel.

 1. Deuteronomy 21:7.

 2. See Article 11(a) of the Companies Law, 5759-1999.

 3. See Article 11(a) of the Companies Law, 5759-1999, Clauses 46–47.

 4. See, for example, in Raanan Har-Zahav, Israeli Administrative Law, Jerusalem, 1996, p. 27.

 5. See in Haim H. Cohn, The Law, Jerusalem, 1999, p. 284.

 6. See in Haim H. Cohn, The Law, Jerusalem, 1999, p. 286.

 7. See HCJ 140/70 Shapira v. District Committee of the Israel Bar Association, Jerusalem, P.D. 25(1) 325, 331: compare with HCJ 7074/93 Suissa v. The State Attorney General, P.D. 48(2) 749, 774.

 8. The obligation of trusteeship places additional obligations and duties on the civil servant, such as fairness, reasonableness, honesty, integrity and straightforwardness (see for example HCJ 840/79 The Association of Contractors and Builders in Israel v. The State of Israel, P.D. 34(3) 729, 746–745), the obligation to act with efficiency (see for example in Yitzhak Zamir, The Administrative Authority, Jerusalem, 1996, p. 675), the obligation to be truthful (see for example HCJ 6163/92 Eizenberg et al. v. The Minister of Construction and Housing, P.D. 30(1) 673, 676), the obligation not to be involved in a conflict of interests (see for example HCJ 3132/92 Mushlav v. The District Committee on Planning and Construction, Northern District, P.D. 47(3) 741, 747).

 9. See, for example, Albert O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States, Cambridge, MA, 1990.

10. See Joseph Cooper, ‘The Puzzle of Distrust’, in Joseph Cooper (ed.) Congress and the Decline of Public Trust, Boulder, CO, 1999, p. 1. Compare also with HCJ 6163/92, Eizenberg, p. 266.

11. In this article we will be dealing with elected officials only. Nevertheless, see the legislature's broader definition of ‘civil servant’ in Article 34(24) of the Penal Code, 5737-1977. Compare with Article 1 of the Interpretation Ordinance [New Version], and also with Article 1 of the Administrative Procedure (Statement of Reasons) Law, 5719-1958.

12. See in Asa Kasher, ‘Professional Ethics’, in Gabi Shpeller, Yehudit Achmon and Gabriel Weil (eds.), Ethical Issues in the Emotional Therapeutic and Counseling Professions, Jerusalem, 2003, pp. 15–29.

13. See Articles 2–3 of the Basic Law: Human Dignity and Liberty, and, later, Articles 5–7.

14. See for example in the Report on Systemic Disciplinary Measures in the Public Service (Kremenitzer Committee), Jerusalem, 1998.

15. See Terry L. Cooper, The Responsible Administrator: An Approach to Ethics for the Administrative Role, San Francisco, 1998, p. 66.

16. See HCJ 4267/93 Amitai v. Prime Minister Yitzhak Rabin 47(5) 441, 467 on the issue of Deputy Minister Pinchasi. Compare with the attorney general's letter regarding Deputy Minister Pinchasi and Minister Deri (ibid.).

17. A distinction may also be made between political corruption and ‘managerial corruption’, which refers to public administration employees who are not politicians. See more in James Campbell Scott, Comparative Political Corruption, Englewood Cliffs, NJ, 1972. Also compare with John G. Peters and Susan Welch, ‘Political Corruption in America: A Search for a Definition and a Theory’, in America Political Science Review, Vol. 72 (1978), pp. 974–984.

18. See HCJ 297/82 Berger v. The Minister of the Interior, P.D. 37(3) 29, 47. See also HCJ 4537/96 Massoud Shoshan et al. v. the I.D.F. Chief of General Staff, P.D. 50(4) 416, 419.

19. See HCJ 4537/96 Massoud Shoshan, p. 422. Also compare with HCJ 297/82 Berger, p. 29.

20. See Ahron Barak, Interpretation in Law (Volume 2—Interpretation of Legislation), Jerusalem, 1993, p. 42.

21. See Ahron Barak, Judicial Discretion, New Haven, CT, 1989. It should be noted that precisely for this reason the obligation of reasonableness is the subject of vigorous debate both among scholars and among the judges themselves. For further discussion see HCJ 1635/90 Jarjavsky v. the Prime Minister, P.D. 45(1) 749, the contradictory approaches of Justice Barak (who supports the obligation of reasonableness) and Judge Alon (who is vigorously opposed to the obligation of reasonableness).

22. Many have sought to define ministerial responsibility over the years. See, for example Geoffrey Marshal, ‘Introduction’, in Geoffrey Marshal (ed.), Ministerial Responsibility, Oxford, 1989, p. 7.

23. In 1918 in Great Britain the Haldane Committee decided on the issue of the distribution of responsibility. See Diana Woodhouse, Ministers and Parliament, Oxford, 1994, p. 49.

24. This is because junior employees are always the ones to perform the tasks in question, and thus are much more likely to be accused of negligence, of having erred or of having made incorrect decisions. See Cooper, The Responsible Administrator, pp. 71–75.

25. It should be reiterated that the present discussion is meant to address elected officials only (Knesset members and government ministers), not appointed bureaucrats.

26. See the detailed discussion of the majority of these cases in Dan Korn and Boaz Shapira, Koalitziot (Coalitions), Tel Aviv, 1997, pp. 239–364.

27. It is a commonly-held and erroneous assumption that Rabin resigned due to the dollar account incident; this was not the case. Yet, Rabin resigned in December 1976, after National Religious Party faction ministers initiated a vote of no confidence in the government in protest of F-15 jet landings in violation of the Sabbath.

28. Although from a critical perspective Netanyahu's act may be regarded as having been based on electoral motives rather than on ethical and moral considerations, it may still be concluded that the candidate for prime minister had recognized the voter's interest in his personal conduct, and the connection that the voter could presumably draw between the candidate's private behaviour and his ability to recruit supporters and to win the election.

29. In Great Britain, for example, Lord Carrington resigned from his government post due to accusations of faulty judgement and wrong decisions regarding Britain's Falkland Islands conflict. In the US, Speaker of the House and Republican Party leader Newt Gingrich resigned after the 1998 Congressional elections and the party's subsequent decline in power (despite the fact that it maintained its electoral advantage over the Democratic Party). In Norway, Labour Party leader Tornjoren Jegland resigned in a highly unusual incident while the party won 165 seats, and despite the fact that this represented twice the number of seats won by the second-largest party it still fell short by two (!) of the number of seats won by the Labour Party in the previous elections (in which it had won 167 seats).

30. See, for example, Article 10, which determines that agenda proposals (submitted by a particular minister) should include a description of the nature of the issue. Article 5 of the code of regulations states that when a decision's practicable interpretation involves a budgetary expenditure, the minister must present a financial estimate and the proposed funding sources, whether from the budget or not.

31. For further discussion see Yehezkel Dror, Tazkir LeRosh Hamemshala (Memorandum to the Prime Minister), Jerusalem, 1989.

32. For further discussion see David Deri and Emanuel Sharon, Kalkala VePolitika BeTaktziv Hamedina (Economics and Politics in the State Budget), Tel Aviv, 1994.

33. Budgetary procedures in other countries demonstrate that Israel's existing procedures are not carved in stone. See for example in Aaron Wildavsky and Naomy Caiden, The New Politics of the Budgetary Process, 4th edition, NJ, 2000. Compare with A. Schick, ‘The Road to PPB: The Stages of Budget Reform’, in F.J. Lyden and E.G. Miller (eds.), Planning Programming Budgeting, Chicago, 1996.

34. For further discussion of this topic see in David Nachmias and Eran Klein, Hok Ha'Hesderim (The Economic Arrangements Bill: Between Economics and Politics), Jerusalem, Israel Democracy Institute, 1999. In 1985 the Economic Arrangements Bill contained only 35 articles. On proposals to change the budgetary procedures see David Nachmias and Alona Nuri, Tiktsuv Lefi Tfukot (Output-Driven Management and Budgeting Principles in the Public Sector), Jerusalem, 1997.

35. On 28 January 1975 Aharon Yariv resigned his post in protest over the government's powerlessness while strongly criticizing the existing inefficient work methods. The Kobarsky Committee, appointed by the government in 1986 to conduct a comprehensive study of the civil service, also pointed out, in one of its recommendations, the need to change decision-making patterns. However, these recommendations, which were adopted by the government, were never implemented.

36. See Barak, Interpretation in Law (note 20 above and its accompanying text).

37. See the Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut, 1983, Jerusalem, the State of Israel, 1983, Section 91(b).

38. Sharon was appointed deputy prime minister on that day.

39. See Cohen, Law, p. 347.

40. See Article 4 of the Basic Law: The Government (5761-2001). In the Basic Law: The Government (5762-1992, containing the direct prime ministerial election procedure), it is stipulated that ‘each Minister is responsible to the Prime Minister for his areas of responsibility, and he is accountable to the Knesset for the discharge of his duties’ (Article 33(g) of the Law).

41. See, for example, Zamir, Administrative Authority, p. 351.

42. See Amnon Rubinstein, Ha'Mishpat Ha'Konstitutsyini Shel Israel (The Constitutional Law of the State of Israel), Tel Aviv, 1991, p. 731.

43. See Rubinstein, The Constitutional Law, p. 731.

44. This is the principle of parliamentary democracy, the essence of which is conveyed by Article 3 of the Basic Law: The Government (5761-2001): ‘The Government holds office by virtue of the confidence of the Knesset’.

45. See Article 4 of the Basic Law: The Government (5761-2001).

46. See Article 4 of the Basic Law: The Government (5761-2001)

47. See Article 11(g)(1,2) of the Transition Law, 5709-1949. In Article 11(g)(3) the principle of collective responsibility further obligates factions belonging to the government coalition. See also the Attorney General's opinion, ‘The Obligation of Ministers to Government Decisions’, of 19 Tammuz, 5757 (24 July 1997).

48. See Article 79(b) of the by-laws.

49. Incidents of this nature occurred during the period of the Basic Law: The Government (1992), which provided for direct prime ministerial elections, thereby moving the locus of responsibility to the prime minister while weakening even more the principle of collective responsibility. In Great Britain, for example, criticism of government policy by a minister in office is utterly inconceivable. See Amnon Rubinstein, ‘Basic Law: The Government in its Original Form – in Practice’, in Mishpat Umimshal, Vol. 3 (1996), p. 587.

50. See CA 281/82 Abu Chatzeira v. M.Y., P.D. 37(3) 673, 704.

51. See Report on Systemic Disciplinary Measures (note 14 above), p. 8.

52. The words of Minister Tzipi Livni at a conference on ‘Ethics for the Civil Service’, held on 11 July 2001 (Ma'aleh Hachamisha Hotel), Jerusalem, the Prime Minister's Office, State and Internal Audit Department, February 2002, p. 9.

53. See The words of Minister Tzipi Livni at a conference on ‘Ethics for the Civil Service’, held on 11 July 2001 (Ma'aleh Hachamisha Hotel), Jerusalem, the Prime Minister's Office, State and Internal Audit Department, February 2002:9

54. See Report on Systemic Disciplinary Measures, p. 9.

55. See HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon [et al.], P.D. 57(6) 817 (see the Judicial Authority website: www.court.gov.il).

56. See HCJ 2533/97 The Movement for Quality Government in Israel v. the State of Israel, P.D. 41(3) 46, 61–62.

57. See, for example, the attorney general's decision with regard to the prime minister's permitted manner of using military helicopters for political and party purposes (Instruction No. 1.1095); or his decision regarding appointments to public office during elections (Instruction No. 1.1501).

58. Elyakim Rubinstein, ‘Decision of the Attorney General in the Matter of the Appointment of Roni Bar-On as Attorney General’, quoted in Asher Arian, David Nachmias and Ruth Amir, Executive Governance in Israel, New York, 2002, pp. 70–71.

59. See HCJ 1993/03 The Movement for Quality Government in Israel, Section 3 of Justice Rivlin's ruling.

60. See Article 2b of the Basic Law: The State Comptroller.

61. For further discussion of the Tze'elim disaster as it relates to Ehud Barak, see Ben Caspit and Ilan Kfir, Ehud Barak—Soldier Number 1, Tel Aviv, 1998, pp. 255–268.

62. See the Office of the State Comptroller (Special Report)—Report of the Comptroller's Findings Regarding the Tze'elim B Disaster, Jerusalem, State Comptroller, 1999. See also the State Comptroller's Internet site: www.mevaker.gov.il.

63. See in Arian et al., Executive Governance in Israel, pp. 80–84.

64. See the Commissions of Inquiry Law 5729-1968, Article 1. The legal authority to appoint a commission of inquiry is also given to the Knesset Committee for State Audit Affairs, according to Article 14(b) of the State Comptroller Law. Compare also with HCJ 390/85 Bank Leumi LeIsrael, Ltd. v. the Commission of Inquiry on the Regulation of Bank Shares, P.D. 39(4), with regard to the authority of a commission of inquiry established by decision of the Committee for State Audit Affairs, rather than by government decision.

65. See Commissions of Inquiry Law 5729-1968, Article 8(a–b). Compare with Avigdor Kalgsblad, Vaadot Hakira (Official Commissions of Inquiry), Jerusalem, 2001, pp. 21–23, on the elements common to all official commissions of inquiry in the countries reviewed.

66. See Zeev Segel, ‘Commission of Inquiry by Virtue of Commissions of Inquiry 1968’, in Mechkerei Mishpat (Bar-Ilan Law Studies), Vol. 3 (1984), p. 220. Compare with M. Ben-Ze'ev, ‘The Political Echelon and Commissions of Inquiry—Conflict, Tension, Fears’, in Menahem Alon (ed.), Sefer Yitzhak Cohen, Tel Aviv, 1989, p. 236.

67. See Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut, pp. 76–77.

68. Up to now there were 15 official commissions of inquiry that have been appointed by virtue of the Commissions of Inquiry Law 1968.

69. See Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut, 86–88, Section 81(c).

70. See Asher Arian, David Nachmias, Doron Navot and Daniel Shani, Madad Hademokratia (The 2003 Israeli Democracy Index), Jerusalem, 2003.