Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-29T11:19:18.113Z Has data issue: false hasContentIssue false
  • English
  • Français

Political Agreements — A Critical Introduction

Published online by Cambridge University Press:  16 February 2016

David Kretzmer
Get access

Extract

Political agreements are an integral part of the political system in Israel. For various reasons — mainly the proportional representation electoral system and the existence of a “third bloc” of religious parties that do no fit into the centre-right and centre-left political alliances — no political party has ever enjoyed an absolute majority in the Knesset. The dominant parties have therefore always had to rely on coalition agreements with smaller parties in order to obtain, and subsequently maintain, the parliamentary majority required for a government to rule under Israel's parliamentary system. A similar situation exists in many municipal councils and in other elected bodies, such as the Bar Council.

Type
Political Agreements
Information
Israel Law Review , Volume 26 , Issue 4 , Autumn 1992 , pp. 407 - 437
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1992

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The main decisions are Rubin v. Berger (1987) 41(i) P.D. 73; Levi v. Prime Minister (1990) 44(ii) P.D. 213; Shalit v. Peres (1990) 44(iii) P.D. 353; Zerzevsky v. Prime Minister (1991) 45(i) P.D. 749; Biton v. Prime Minister (1991) 45(ii) P.D. 827.

2 See Basic Law: The Knesset (Amendment No. 12), 1991 (S.H. no. 1345, p. 90).

3 Cf. Barak, Daphne, The Contractual Liability of Public Authorities (Tel Aviv, 1990, in Hebrew) 41Google Scholar, who states: “A political agreement is an undertaking on behalf of a person or body of public standing, which was made in order to achieve political goals and which refers to the means that are to be taken to achieve them …”

4 See Shalev, G., Government Contracts in Israel (Jerusalem, 1985, in Hebrew) 25–27Google Scholar.

5 This point is developed by Daphne Barak, supra n. 3, at 42.

6 See Telser, L. G., “A Theory of Self-Enforcing Agreements” (1980) 53 J. of Business 27CrossRefGoogle Scholar.

7 In the main recent Supreme Court decision dealing with the justiciability question Justice Barak drew a distinction between two facets of justiciability: normative justiciability and institutional justiciability: see Ressler v. Minister of Defence (1988) 42(ii) P.D. 441. In the present context I am referring to institutional justiciability. However, even if one refers to normative justiciability (i.e., the question of whether an issue may be decided according to legal criteria) the question of legal status and justiciability should still be separated. A court may have legal criteria for deciding whether an agreement is illegal or against public policy even if the agreement would not have been legally binding had those faults not existed.

8 See the judgment of Justice Goldberg in the Zerzevsky case, that will be discussed below.

9 Supra n. 1.

10 See supra n. 2.

11 See Ressler v. Minister of Defence, supra n. 7, at 507.

12 Section 21A(a) of the Basic Law: The Government provides: “After informing the government of his intention to do so, the Prime Minister may remove a minister from his post…”

13 Supra n. 1.

14 Ibid., at 77.

15 Zerzevsky case, at 838.

16 Rubin case, at 78. Justice Barak refers to non-justiciability, though he was clearly referring to the question that I have labelled the “legal status” question. His assumption was that if a political agreement has no binding force in law, it becomes non-justiciable, presumably because there are no legal norms that apply to such an agreement. This would fit into the category of what Justice Barak has elsewhere called “normative justiciability” (as opposed to “institutional justiciability”): see Ressler v. Minister of Defence, supra n. 7. As I explained above, the questions of justiciability and legal status must be distinguished. Even if a political agreement has no binding force in law it may nevertheless be justiciable, when the question before the court does not relate to an attempt to enforce the agreement or to obtain a remedy for its breach. Furthermore, Justice Barak refers to “public agreements”. There is a great difference between political agreements and public agreements. My remarks are confined to political agreements of the type that concerned the court in both the Rubin and Zerzevsky cases.

17 Justice Elon based his view that political agreements such as coalition agreements are binding on Jewish law. He argued that as the law failed to regulate the question, under the Foundations of Law Act, 1980, it should be decided according to the “principles of freedom, justice, equity and peace of the Jewish heritage”. He then proceeded to argue that public agreements made by leaders of Jewish communities were regarded as binding in rabbinical responsa and that this principle should be applied to political agreements in modern-day Israel.

18 See Zerzevsky case, at 841, where Justice Barak states: “The duty of a public authority to respect a political agreement which it reached is anchored… in public law”.

19 See the report of Ilan Shehori in Ha'aretz of 23.12.88. Following the decision of the head of the Likud Party, Yitzhak Shamir, to break his agreements with the religious parties and to form a widely-based government with the Labour Party, two of the religious parties declared that they would wait for the right moment and would then get their revenge. During the negotiations for the establishment of a new government after Mr. Shamir's government fell in March, 1990, one of those two parties declared that it preferrred an alliance with the Labour party because the Likud had not respected its commitments: see the report of Shehori, I. in Ha'aretz, 11 May 1990Google Scholar and Alon, G., “Promises in Cash”, Ha'aretz, 3 June 1990Google Scholar.

20 See the Levi case, supra n. 1, at 214.

21 Ibid.

22 I am grateful to Yaron Ezrahi who made this point in a legal-theory workshop on political agreements in which I presented my critique of the current trend in Israeli jurisprudence on political agreements.

23 Zerzevsky case, at 797.

24 Ibid., at 798.

25 See Telser, supra n. 6.

26 See Zerzevsky case, at 845-846.

27 In Zo'abi v. Abu Rabia (1981) 35(ii) P.D. 262, Justice Haim Cohn held that such an agreement is contrary to public policy. However, if the agreement is publicized before the election, as the jurisprudence of the Supreme Court would now seem to require (see Shalit v. Peres, supra n. 1), it is difficult to see why the agreement should be regarded as illegitimate. I shall therefore assume, following the remarks of Elon, Justice in the Zerzevsky case, at 794Google Scholar, that such an agreement is not contrary to public policy.

28 See Miller v. Minister of Transport (1961) 15 P.D. 1989.

29 See Rubin case, at 79 and Zerzevsky case, at 844-845.

30 See Zerzevsky case, at 842.

31 Ibid.

32 Ibid. Justice Barak stated: “If making the contract is a reasonable act, then honouring the agreement is reasonable conduct, and its breach is obviously an unreasonable act”.

33 Ibid., at 788.

34 Ibid., at 858.

35 See Daphne Barak, supra n. 3, at 155-188.

36 Rubin case, at 79; Zerzevsky case, at 844-845.

37 Zerzevsky case, at 845.

38 See Miller v. Minister of Transport, supra n. 28.

39 This was the basis for the contract in the Miller case, ibid.

40 See State of Israel v. Li-Or (1969) 23(i) P.D. 436.

41 See Oniot Michal U'Masa v. Minister of Finance (1957) 11 P.D. 1490.

42 See General Labour Federation v. Beer Sheba Municipality (1988) 33(iv) P.D. 488.

43 It is conceivable that legal sanctions would not be necessary in order to ensure that the government respect its undertakings, since, as Justice Barak pointed out in the Zerzevsky case, nobody would contract with a government which did not keep its agreements. However, if the government is not bound by the contract, why should the other parties be bound? And unless parties who contract with the government are bound to keep their promises, government authorities will be reluctant to contract.

44 See Daphne Barak, supra n. 3, at 181.

46 Zerzevsky case, at 795-6.

46 Ibid., at 866.

47 Ibid., at 794.

48 Ibid., at 851, per Barak J.

49 Ibid.

50 See Levi v. Prime Minister, supra n. 1, at 215.

51 See Ressler v. Minister of Defence, supra n. 7, at 523.