Ratification of International Accords

On July 13 and 27, 2003, the Constitutional Committee considered a series of topics which it believed should be considered for the Legislature chapter of the emerging constitution, but which are not specifically addressed in the current Basic Law: The Knesset. These were:

On July 13, 2003, The committee took up the issue of ratification of international treaties and accords. Chairman MK Eitan opened the debate, declaring this to be a question of the balance of power between the legislative and executive branches, and others pointed out the importance of this issue to Israel in light of the likelihood of exchanging lands and adjusting borders in the future.

The issue of international conventions involves two related subjects

1. Knesset ratification of international accords.
2. International accords and domestic law.

The current status quo – no legal requirement for Knesset approval

Professor Ariel Bendor of University of Haifa described the current situation in Israel by saying that the executive branch has exercised the authority to sign international agreements and bind the state; the law does not require the legislature to approve international agreements as does, for instance, American law (See Article I, Section 10, Clause 3 of the US constitution). According to this theoretical approach the executive branch is the authorized organ to make international commitments on behalf of the state as part of conducting its foreign affairs.

The tradition – Knesset ratification of important conventions

Israel’s government has traditionally placed international accords of particular political or military importance (e.g. peace agreements) on the Knesset table for ratification. This formal approval, rooted in the directives of both the government and the Attorney-General, renders the accord fully binding. This requirement highlights the centrality of the Knesset in accords with significant domestic ramifications.

The current ratification directives according to the government and the Attorney-General

The above rules state that a minister who wishes to bring an international agreement to the Government for approval must first submit to the Knesset copies in Hebrew, specifying any changes it will require in domestic law. The government shall not approve such an agreement unless it has been in the hands of the Knesset secretariat for at least two weeks. Additionally, in cases of special importance, the Government may request the Knesset actively ratify an accord.

The Knesset and the people must approve any accord removing the authority of Israeli law from a territory

One notable exception requires that any government decision or international agreement removing the authority of Israeli law from any territories currently under its rule be approved by 61 members of Knesset. The law also requires approval by national referendum, as soon as a law regulating national referenda is enacted.

In support of greater Knesset involvement in international agreements

Several Israeli scholars support greater parliamentary participation in the process of creating international commitments, by way of ratification of international conventions. They expressed the belief that in principle international agreements should be ratified by the Knesset, preferably before they are signed.

MK Eitan summarized the discussion by requesting the legal advisor to prepare three drafts for the article of the constitution:

1. The Knesset’s approval shall be required for all types of international agreements unless the law states otherwise.
2. The Knesset’s approval shall not be required unless the law states otherwise.
3. The Knesset’s approval shall be required for certain types of agreements (like accords on human rights, accords redefining the state’s borders etc.). The Knesset will be authorized to modify them in ordinary legislation.

Yes, if the convention is detailed enough
Professor Bendor considered the American arrangement whereby the legislature must approve the agreement simultaneously with the executive branch. He suggested that if the convention is detailed enough, the Knesset may decide that its ratification would automatically make the convention a part of internal law. This mechanism would ensure that domestic law does not contradict the state’s international commitments, so that the state may fulfill them.

No, domestic legislation is required
Deputy Attorney General Yehoshua Shofman and Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya warned against automatically adopting a convention into Israeli domestic law. A general ratification is insufficient to make a convention part of Israeli law, and usually detailed domestic legislation is required. This is the case particularly with regard to conventions that declare abstract norms and rights (e.g. the Convention on the Rights of the Child), in which the effect of their ratification on domestic law is unclear. Adapting Israeli law to be in harmony with international agreements may require months of significant legislative work. Dr. Sommer suggested that this preparation be done at the same time that the Government brings the accord to the Knesset for ratification.

The international accord as law in its first reading
MK Eitan recommended that the Knesset consider ratified accords as proposed laws approved in a first reading. They would then be transferred to one of the Knesset committees to continue the legislative process.

The current situation – a conflict between international obligations and domestic law
Though in the international arena a convention signed by the executive authority enjoys full recognition, such international agreement has little relevance to domestic Israeli law unless ratified by the Knesset in a form of a law of the Knesset. Unfortunately this can create situations where the executive branch makes an international commitment that is not carried out because of lack of relevant domestic legislation. This is particularly relevant when the government changes or when the prime minister who signs an agreement does not have a majority in the Knesset.

The Committee discussed several options:

• Ratification of conventions that change legal rights
  

MK Resef Chayne (Shinui) proposed placing the line between those agreements that affect domestic law by changing the legal rights and duties of the citizens, and those like peace agreements, which do not. The former would require Knesset ratification and the latter would remain the government’s prerogative. Other Committee members, including MK Eliezer Cohen objected. They considered, for example, the implications that would have occurred if Prime Minister Barak, after losing his majority in the Knesset, had returned from Camp David in 2000 with a peace agreement with the Palestinians.

• Knesset approval of conventions of substantive importance
  

Deputy Attorney-General Yehoshua Shofman suggested including in the constitution a requirement of Knesset ratification for several types of international accords: those requiring domestic legislation, accords on human rights, accords redefining the state’s borders, and agreements of special national importance.

• A general rule of approval with details in ordinary law
  

Another recommendation was to establish a blanket rule regarding the requirement of Knesset approval, with exceptions to be listed in the law. It was not decided whether the general rule would require ratification and the listed exceptions be exempt, or whether it would go the other way around.

Knesset supervision over appointments to the public service

Professor Shlomo Slonim of the Hebrew University briefed the Committee on procedures of political appointments in the United States. There are two major types of appointments in the US; those made by the President alone, and those which additionally require Senate approval. Political appointees, for instance State Department staff appointed by the President, leave their posts when the President leaves office; but Presidential appointments to the Courts and the military do not end their terms of service with the President who appointed them. The American constitution defines Presidential and Senate appointment as the default rule. The positions not requiring such appointments are the exception, though they have come to be the far greater number.

The principle – appointment by tender
In Israel, the concept of an equal-opportunity competitive procedure of appointment for positions in the public service is a fundamental principle, and it is at the core of The Civil Service Law (Appointments) 5719-1959. The law states that in principle, a person shall be appointed to a position in the civil service only in the proceedings of a public tender to ensure that the best candidates are chosen according to the principles of equal opportunity, suitability and fairness. This system reflects the concept of a professional, permanent, and apolitical public service.

The Civil Service Law (Classification of Political Activity and Collection of Funds) 5719-1959 clearly restricts the participation of government employees in political party activities.

Exemption from tender for senior positions
The most senior positions, like the general managers of the ministries (equivalent to CEOs), are exempt from tenders. The highest nominations in the state are made by special cabinet decision – these posts include the head of the General Security Service, the Mossad, the Governor of the Bank of Israel, and the Director of Prison Services, among others.

Search committees for senior appointments
In recent years, the Israeli approach towards appointment of senior position of highly professional nature is to employ search committees instead of tenders. In these proceedings professionals try to locate the most suitable candidates for the positions in a tender-like equal-opportunity manner. While tender proceedings are “passive” the search committees actively try to contact suitable candidates for the office. There are currently some 20-30 positions for which candidates are located in this manner.

A suggested model – political appointments in the Israeli public service

• Can the Government and ministers act on their policies if they are not allowed to replace the senior bureaucrats of the ministries?
• Should the top officials in government ministries be professionals who perform their jobs regardless of the politicians in power, or should they be political appointments, loyal to their parties and ministers, and then be switched every term?

The Committee discussed these questions.

MK Avraham Burg (Labor) MK Gideon Sa’ar (Likud) and MK Yuli-Yoel Edelstein (Likud) suggested enabling elected ministers to appoint political officials to execute their policies. This can prevent a situation in which a public official could express the preferences of a former minister who made the appointment, and not those of the current minister. Presently, the professional staff of a ministry can hold the politicians “hostage”, preventing reform or legislation from going through.

How can the political appointments ensure both political effectiveness and professionalism?
Listing the policy positions
The MKs recommended creating a list of senior policy positions that each minister will be authorized to appointseparating them from the professional, non-term-bound appointments. The political appointments should last only so long as the minister holds office. Prof. Ariel Bendor of the University of Haifa suggested the constitution omit a listing of particular positions, but rather state that the Knesset shall establish in law a list of senior positions which shall be appointed by the Government and shall require additional conformation at a Knesset hearing. This list of policy positions is to be determined in law.

MK Gideon Sa’ar and Professor Ze’ev Segal of Tel Aviv University suggested dividing the powers between the State Attorney and the Attorney General. Different rules should apply to the State Attorney, who should receive all supervision over criminal proceedings and should remain a professional civil-servant, and to the Attorney-General, who should be appointed as a term-bound political official. Mr. Yehushua Shofman of the Ministry of Justice objected to this proposal.

The legal adviser of the Committee pointed out that such a reform in the public service is not a thing to be detailed in the constitution. Such reform can take place by changing the ordinary laws dealing with the civil service.

The Committee debated whether to establish a demand for Knesset approval of appointments for senior positions in the public service. This is to enable the public to examine candidates for positions that have a considerable influence over public life and to supervise such nominations. Prof. Segal supported conducting Knesset hearings for the candidates for senior appointments that, according to the suggested model, will be political.

Professor Ariel Bendor and Mr. Yehushua Shofman noted that the American system is designed to provide checks and balances in a Presidential system, and may be unsuitable in a Parliamentary system such as Israel’s. The legal advisor informed the Committee that a comparative study had found almost no parliament confirmation procedures for appointments at the public service in the constitutions of other parliamentary democracies.

MK Burg was appointed by the Committee to form a sub-committee on the issue of political appointments with the help of Dr. Yitzhak Klein of the Israel Policy Center. It will advise the Committee on the matter and recommend the necessary changes and reforms in the current legal situation and ordinary legislation regarding the public service.

A few suggestions were made regarding parliamentary commissions of inquiry and several corresponding drafts will be prepared. In principle, it was agreed that the constitution would authorize both the Knesset and the Government to appoint commissions of inquiry with full investigative powers.

A requirement of special majority

Prof. Zeev Segal of Tel Aviv University suggested the constitution require the approval of a majority of Knesset members to appoint a commission of inquiry. This can only be done on the basis of a request of the Government or a third of the MKs.

Authorizing only the Knesset to appoint a commission
MK Eti Livni (Shinui) suggested that the constitution only give the Knesset power to appoint a commission, and not the Government.

Expanding the powers of the parliamentary commission of inquiry
MK Michael Eitan (Likud) raised the possibility of expanding the powers of the current parliamentary commissions of inquiry, giving them enforcement powers instead of merely authorizing the Knesset to appoint public commissions of inquiry.

Should parliamentary commissions of inquiry be maintained?
The legal advisor recommended maintaining parliamentary commissions of inquiry in the constitutional text at this point, and debating in a further round whether they are at all necessary if the Knesset is granted the new right to establish public commissions of inquiry.

According to the basic principle of checks and balances, the legislature is also the supervising body over the executive. At present, according to the provisions of Basic Law: The Knesset and Basic Law: The Government, information can only be demanded from officials in the public service and similar bodies. Additionally, the Knesset plenum and its committees can demand the disclosure of information, but not so an individual Member of Knesset. Committee members felt that the current stipulations are not sufficient and do not give the Knesset and its members enough access to information.

The Committee discussed several issues regarding the relations between the Knesset and the government, and the desirable constitutional arrangements:

Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya examined the questions the issue raises:

1. Who is authorized to request information? - Three possibilities:

• The Knesset as a whole (the Knesset plenum)
• The Knesset committees
• The individual Member of Knesset

Dr. Sommer recommended authorizing the Knesset as a whole and its committees but not individual MKs to request information. He suggested that the way for an individual MK to gather information should be to strengthen the MK’s status in the Freedom of Information Law 1998, that enables every citizen to demand information from the governmental authorities.

2. Who must disclose information?

• Governmental bodies
  • Dr. Sommer advised that the constitution state that all public bodies are obligated to provide information to the Knesset. This will apply to all bodies in the governmental administration that are financed by the state or controlled, even indirectly, by the Government.

• Any private citizen
  • on the other hand, Dr. Sommer was against expanding the Knesset’s authority to demand information from any person, saying that such wide authority cannot be based on the Knesset’s authority to supervise governmental activity.

3. Which individuals in each body should be required to disclose information?

• The minister or the head of the body

Dr. Sommer criticized the current situation in which a minister is allowed to appear in front of a Knesset committee in place of his or her subordinate. This prevents the Knesset or committee from addressing its questions to the individual most directly involved.

• The person directly in charge of the issue in question – Dr. Sommer suggested that the committee or Knesset could invite the specific person responsible, accompanied by his or her superior. However, the superior could not answer questions in the place of the involved person.

4. What can be demanded?

• An individual’s appearance?
• The disclosure of information?
• Both?

5. Should there be exceptions of the duty to disclose information?

Such exceptions might include limiting the types of committees that can see the information, locking the doors to the committee room, or examining information but not copying or recording it.

6. Who decides in conflicts regarding disclosure?

Dr. Sommer pointed out that today the method of deciding between the Knesset committee demanding information and the Government refusing to give it is by submitting a petition to the High Court of Justice. In his view this is not the best solution, and he suggested there be a mediator to decide on the legitimacy of the refusal to provide information.

7. What should be the sanctions for non-compliance?

The Committee thought that these seven issues should be settled in ordinary law rather than in the constitution.