Lawsuit lessons from abroad

August 21
Netanyahu and Obama agree: lawsuits against the executive branch are bad (AP/Pablo Martinez Monsivais)
Netanyahu and Obama agree: lawsuits against the executive branch are bad (AP/Pablo Martinez Monsivais)

The following is a guest post from Sefi Keller and Shai Cohen. Keller is a graduate student at the Hebrew University of Jerusalem and co-founder of Israel’s fact-checking program PolitiWatch.

The vote to authorize House Speaker John Boehner’s lawsuit against President  Obama will make the House itself the plaintiff in a legal procedure that aims to restrain presidential power. This was a notable event in American politics. In Israel, however, Members of Parliament petitioning the court in order to affect policy is a very common occurrence.

Israel’s High Court of Justice is a unique judicial institution that Israel inherited from the British mandate of Palestine back in 1948. The court’s main role is to supervise all governmental agencies, and it does so by hearing petitions presented to it by those who believe they’ve been harmed by the executive branch. However, in 1986 the court ruled (in Ressler v. Minister of Defense) that it is not necessary for the petitioner to establish that he or she was personally harmed by the government action being challenged. That ruling is part of a wider legal doctrine, promoted by the President of the Supreme Court Aharon Barak, according to which there is no question that can’t be answered by the court. In other words, all matters of policy can be theoretically brought before a judge.

The 1986 decision opened the court’s gates to political petitions by “public petitioners” such as Non-Governmental Organizations (NGOs) and Members of the Knesset (MKs) – the Israeli parliament. The High Court’s initiative, opening its gates to practically anyone who wanted to affect public policy, had a tremendous influence on the political behavior of MKs. Our research shows (see Figure 1) that there were only 20 such petitions during the 1980s but 64 during the 1990s, after the decision. That figure rose to 94 during the most recent decade, 2001 to 2010. In other words, the court’s invitation to petition was heard clearly by the MKs.

 

Number of MK petitions by year (Data: Nevo, compiled by authors)
Figure 1. Number of MK petitions by year (Data: Nevo, as compiled by authors)

 

Dotan and Hofnung (gated) tried to explain this phenomenon by arguing that the main driving force behind MK petitions is the media coverage surrounding them. They argue that the wave of MK petitions is just another result of the transition to the primaries system, replacing the old way of internal party selection driven by nominating committees. The transition required the politicians to achieve stronger name recognition among the general public in order to be placed prominently on the party’s candidate list. One way of achieving name recognition is to introduce more and more private bills; another is by petitioning the High Court as often as possible.

While the desire for media coverage plays an undeniably important part in the MKs’ incentive to petition the High Court, it is also worthwhile to notice the profit lawsuits can accrue in terms of the MK’s preferred policy. According to Dotan and Hofnung, the probability of success for an MK’s policy based petition is 14.5 percent.  This is interesting but too broad: we have subsequently tried to see if different fields of policy have different success rates. As Figure 2 indicates, we have discovered that while matters of national security and foreign affairs have only a 5.9 percent success rate in court, matters concerning “church and state” yield a much more appealing 58.3 percent success rate. One possible explanation for the difference in success rate is that while the High Court states in principle that all matters can be adjudicated, the judges prefer in practice to abstain from ruling on “hot potatoes” such as national security and foreign affairs. A somewhat similar suggestion has been made by Dotan (gated) who claimed the Court uses the legal requirement of “ripeness” in order to avoid tough political questions.

 

 

 


Figure 2. Rate of Successful Petitions by Policy Area
(Data: Nevo)

 

Matters of “church and state” are especially interesting to examine, seeing as this policy area provides the paradigmatic example of a politically deadlocked issue in Israel. In other words, success in “church and state” policy is worth much more than other policy success because it is that much harder to achieve through conventional political means. With a success rate as high as 58.3 percent, and with media coverage and the political profit it entails guaranteed, there seem to be few downsides — especially since the cost of petitioning is close to nothing. It is easy to understand how opening the court’s gate in such manner led to a large wave of MK petitions.

Having an MK as a petitioner deems the petition political by nature. Courts around the world find it difficult handling political issues, and most of them declare time and again that they have no wish to interfere in the political sphere. However, the challenge faced by the High Court of Israel is even greater than that of its American colleague. In Israel, the judicial appointment process is much less politically-grounded than in the U.S. Therefore, the court doesn’t have the capital that backing by an elected institution can bring, and political rulings by the court are considered to be even less legitimate in Israel than in the U.S.

Another problematic characteristic of the Israeli court is the controversial “Constitutional Revolution.”  Unlike the American constitution, the Israeli constitution is by a large part “court made”: the High Court ruled only in 1992 that Israel’s basic laws are in fact a functioning constitution.

The semi-internal appointment process and the unclear constitutional status thus make MK petitions all the more difficult for the Israeli High Court to handle. Ruling on controversial and political matters, while simultaneously maintaining a public image of blind justice, is close to impossible. Therefore, it is not surprising that when asked about their attitudes towards the High Court, some politically identified groups tend to favor the court significantly more than others. Namely, the political left and secular respondents tend to answer much more favorably than the political right and the religious.

Hurting the court’s public image isn’t the only threat posed by MK petitions. When ruling on any petition the court is bound to favor one side and to disappoint another. However, when the disappointed loser happens to wield legislative authority it becomes a real danger to the court’s standing. Indeed, political backlash (or at least the threat of it) aimed at “punishing” the court has become somewhat of a trend in the last few years. Of course, one can argue that the court could use a little restraint, but considering the motives of a “vengeful legislator” who just lost his case, it is hard not to worry about a legislative overreaction. These kinds of “retaliations” between the branches of government are to be expected when the friction between the branches increase and the separation of powers is not taken seriously.

Finally – and most notably perhaps for House members to keep in mind — MK petitions also hurt the Knesset as a parliamentary institution.The ratio of Knesset members to Israeli citizens is quite small, with only 1 MK to every 59,167 citizens (a House district in the U.S. represents 700,000+ citizens.) As a result, an MK’s time is even more valuable than that of other members of parliaments abroad. Much of that precious parliamentary time is spent on long judicial proceedings instead of on much needed parliamentary activity.

To sum, since 1986 Israel faces a growing number of petitions to the High Court made by Members of its Knesset. This phenomenon hurts the public image of the court as a non-political institution; it poses a lasting threat of legislative retaliation upon the High Court; and wastes the crucial resource of parliamentary time. The Israeli case should serve as a warning to members of parliament seeking legal remedies to political ailments. Admittedly, the U.S. isn’t likely to see the same “run on the courts” anytime soon, thanks to its legal standing requirement and its much clearer Constitution. However, one should take a good look at where the road of political lawsuits could lead.

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