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Published online by Cambridge University Press: 04 July 2014
What is the role of government lawyers? Are they merely agents of their client agencies in court, or do they have a broader function within the world of administrative dispute resolution? On the face of the matter, the lawyer within an adversarial legal system is required to present, to the best of her ability, her client's case in court. The lawyer for the government, however, is not just a professional jurist, but also a public official who is committed to the principles of the rule of law and the constitution. Over the last decade, this tension between the loyalty of the public lawyer to her client and her integrity as a legal bureaucrat who forms an essential element in the process of judicial review has drawn the attention of lawyers and legal scholars.
In this article I describe a model of Public Law litigation in which governmental lawyers play a much more complex role than that of solely being legal agents who seek to maximize their client's rate of success in court. This is the case in Public Law litigation in Israel before the High Court of Justice, where the government's lawyers function not only as representatives of their client agencies but also, in some cases, as arbitrators who handle legal disputes without the intervention of the Court.
1 Caplan, L., The Tenth Justice: The Solicitor General and the Rule of Law (New York, 1987)Google Scholar; Salokar, R.M., The Solicitor General: The Politics of Law (Philadelphia, 1992)Google Scholar; Baker, N.V., Conflicting Loyalties: Law and Politics in the Attorney General's Office, 1789-1990 (Lawrence, Kansas, 1992)Google Scholar; Kmiec, D.W., The Attorney General's Lawyer: Inside the Meese Justice Department (New York, 1992)Google Scholar; Clayton, C.W. (ed.), Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics (Lawrence, Kansas, 1995)Google Scholar.
2 The current article is part of a larger project on government lawyers in Israel that is currently in progress. See also Dotan, Y., “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the High Court of Justice during the Intifada” (1999) 33(2) Law and Society Review 319–364CrossRefGoogle Scholar (Hereinafter: Dotan 1999). The research focuses on the practices of government lawyers during the first half of the nineties, and therefore most data refers to this period. Nevertheless, the general structure of the relevant organs of the Israeli legal bureaucracy and their practices — as described in the article — have hardly changed during the last decade. Therefore, I use the present tense through most of the article.
3 Some serious cases such as a criminal indictment on a murder charge, or a civil action where the value of the suit is very high, are brought before District Courts as the first instance and then taken to the Supreme Court on appeal. This means that the Supreme Court hears civil and criminal cases both as an appellate court and as a court of cassation. Recently, the Knesset accepted the Administrative Courts Law, 2000. This statute provides that judicial review applications, appeals against administrative decisions and other administrative claims in the fields specified by the statute should be assigned to the District Court, while the HCJ would serve as an appellate division for these matters. The new legislation, however, relates only to some prescribed fields (such as zoning and planning, tenders and education) while preserving the function of the HCJ to serve as a trial court in all other fields of administrative controversy. Moreover, the new law provides that the HCJ is entitled to seize jurisdiction on every administrative action, even in fields dealt with by statute, if it so decides.
4 Dweikat v. The Government of Israel (1979)34(1) P.D. 1; Mitrael v. Prime Minister (1993) 47(5) P.D. 485; Pessahu v. Minister of Interior (1993) 49(4) P.D. 661; Schnitzer v. Chief Military Censor (1988) 42(4) P.D. 617; Barzilai, G., Yuchtman-Yaar, E. and Segal, Z., “Supreme Courts and Public Opinion: General Paradigms and the Israeli Case” (Winter 1994) 1 Law & Courts 3Google Scholar.
5 Schnitzer v. Chief Military Censor, supra n. 4; Sarid v. Speaker of the Knesset (1982) 36(2) P.D. 197; Shalit v. Perez (1990) 44(3) P.D. 353.
6 Aloni v. Minister of Justice (1986) 41(2) P.D. 1; Barzilai v. Government of Israel (1986) 40(3) P.D. 505; Ressler v. Minister of Defense (1986) 42(2) P.D. 441; I. Zamir, “Court and Politics in Israel” (1991) Public Law 523.
7 Yeredor v. Central Election Committee (1965) 19(3) P.D. 365; Bergman v. Minister of Finance (1969) 27(2) P.D. 785; Sarid v. Speaker of the Knesset, supra n. 5; Laor v. Speaker of the Knesset (1989) 44(3) P.D. 529; Ha'mizrachi Bank v. Migdal (1993) 49(4) P.D. 221; Kretzmer, D. “The New Basic Laws on Human Rights: A Mini Revolution in Israeli Constitutional Law” (1992) 26(2) Is. L.R. 238Google Scholar.
8 Yuchtman-Yaar, E. and Peres, Y., “Public Opinion and Democracy after Three Years of Intifada” (Spring 1991) Israeli Democracy 24Google Scholar; Barzilai, Yuchtman-Yaar and Segal, supra n. 4. In absolute terms, the level of trust of the general public in the Supreme Court eroded considerably during the last decade. It still, however, keeps its place as the second most trusted governmental institution (after the IDF), see, e.g., Yaar, E. & Herman, T., “The Peace Index — December 2002”, Ha'aretz, January 7th 2002, p. b–3Google Scholar.
9 International Social Science Program ISSP. “Religion 1991” Koln. Germany: Zentralarchiv fur Empirische Sozial Forschung, ZA V. Study 2150, May 1993.
10 Edelman, M., “The Changing Role of the Israeli Supreme Court” in Schmidhauser, John, ed., Comparative Judicial Systems (London, 1987) 93CrossRefGoogle Scholar; Kretzmer, D., “Forty Years of Public Law”, (1990) 24 Is. L.R. 341Google Scholar; Barzilai, Yuchtman-Yaar and Segal, supra n. 4.
11 Source: The Central Bureau for Statistics of Israel (CBA). After 1996 the CBA stopped gathering information on the Supreme Court, and the statistics are now being made by the Judicial Authority (by somewhat different methods). The question of how (if at all) 14 judges can manage to cope with such a huge caseload and still function both as the Supreme Court and the principal tribunal for judicial review is beyond the scope of this article. I will refer to it only in the context of the discussion of the practices of the HCJ.
12 The court fee for a petition to the HCJ is currently approximately the equivalent of $100.
13 The vast majority of cases processed by the HCJ are dealt with at the stage of the preliminary hearing without any order nisi being issued. According to the data of the Central Bureau of Statistics of Israel, out of 4,266 cases handled by the HCJ between 1985-1993, in only 886 cases was an order nisi issued.
14 The HCJ procedural rules allow such vehicles to be taken only in exceptional circumstances and with special approval of the Court. In reality such exceptional permission is rarely given.
15 By “success” in litigation, I mean that the petitioner managed to achieve tangible, rather than merely symbolic, rewards as the result of the legal process. Of course, there are many other sorts of benefit that may be derived from litigation, such as publicity for a certain public cause, influence on the agenda of a judicial institution, etc.
16 Included in this category are settlements in which a petitioner achieved anything between more than nothing and less than everything she asked for in the original petition (cf. Dotan 1999, supra n. 2, at 333 and n. 26 infra).
17 The total figure slightly exceeds 100% as a result of rounding.
18 The number includes all the petitions involving agencies of the Government of Israel, excluding only petitions issued solely against local authorities. The data relates to cases handled and sent to the Ministry archive rather than those filed in Court during the relevant period. Thus, it includes some cases which were filed before 1990 and excludes some which were filed during 1994 (and maybe even during 1993) but were still pending. Only data for 1990-1994 is presented since the department did not collect such data prior to 1990. However, the department's data is consistent with the data collected by the Central Bureau of Statistics. According to its findings, out of 4,266 petitions against government agencies during the period 1985-1993, only in 190 (i.e. 4.45%) of the cases was the order nisi made absolute (i.e. the petitioner won by a final judicial disposition). The Bureau has no data concerning the outcomes of out-of-court settlements.
19 The HCJD even represented the Knesset before the HCJ whenever a statute or any other decision of Parliament was challenged in court as well as judicial organs (such as the Courts or other quasi-judicial tribunals). Recently, following the increase in the HCJD caseload, the department has grown significantly. At the beginning of 2001 it comprised 15 lawyers.
20 The Attorney General in Israel is nominated by the government and serves as its legal advisor. Unlike England, she is not a member of Cabinet, and unlike the Federal system in the United States, the position is not considered to be a political one. The nomination is not influenced by partisan affiliations or ideological inclinations. Rather, the Attorney General is considered the unbiased guardian of the rule of law, and is answerable to the principles of the constitution alone. See Zamir, Itzhak, “Rule of Law and Civil Liberties in Israel” (January 1988) 64 Civil Justice Quarterly 73Google Scholar.
21 The law in Israel requires a mandatory period of clerkship before filing for the Bar exams. Normally, each of the lawyers in the HCJD employs such a legal clerk. Apart from the clerks, there is a small administrative staff (normally no more than 3 secretaries) serving the department. Most of the administrative work is done by the clerks.
22 Cf. Salokar, supra n. 1, at 34.
23 The data presented here is based both on interviews with lawyers in the Ministry of Justice and on participant observation conducted in the HCJD during 1993. See also Dotan 1999, supra n. 2, at 337-342.
24 See section B-2 text accompanying n. 11 supra.
25 In Amitai v. The Government of Israel (1993) 47(5) P.D. 441, the petitioners sought an order to force the Prime Minister to dismiss the Minister of Interior after the latter had been charged with forgery and larceny. The Attorney General's Office refused to defend the decision of the Prime Minster not to dismiss the Minister of Interior. The Court explicitly endorsed the position of the Attorney General. While answering the argument that the Government did not enjoy proper legal representation, Justice Barak said:
“The General Prosecutor represented one and only one client — the Prime Minister. She did so as the agent of the Attorney General…Indeed, the position of the Attorney General was different to the position of the Prime Minister … in such a case, the Attorney General should represent the Government according to his own legal perception. The reason for this principle is the concept that the Attorney General is the authorized interpreter of the law vis-à-vis the Executive.” (ibid., p. 473.)
This case was by no means the only occasion in which the Court supported the refusal of the Attorney General or the HCJD to represent the Government. In another case, the HCJD refused to defend a decision by the Public Censorship Committee to dismiss an application for a license to present a theater play. The Court allowed the Committee to be represented by a private lawyer, but intervened and quashed its decision (H.C. 14/86 Laor). For a description of other occasions of refusal on the part of the Attorney General to represent the Government or of divergence of their positions, see Gavison, Ruth, “The Attorney General: A Critical Examination of New Trends” (1996) 5 Plilim - Israel J. of Crim. Justice 27Google Scholar; Gutman, Yehiel, The Attorney General (1995)Google Scholar.
26 For example, out of seven former heads of the HCJD, only one left the service for private practice. All the rest were nominated for the bench either immediately after leaving the HCJD or after a few years (spent, in most cases, within the OAG). Two of the former heads of the HCJD currently serve as judges of the Supreme Court of Israel (Mishael Cheshin and Dorit Beinisch). The rest were nominated to lower courts. Several other former members of the department were nominated for the bench.
27 See also Dotan 1999, supra n. 2, at 337-344.
28 See section 4, n. 45 infra and accompanying text.
29 Interview with KS. Indeed, in interviews referring to earlier periods, some members of the department confirmed that they use to handle “requests” on behalf of interested parties regarding administrative decisions (interviews with IZ). They indicated, however, that such incidents were scattered and that there was no attempt to institutionalize these cases in any form. Even the reference to such cases as “prepetitions” is a relatively new phenomenon that did not exist prior to the late eighties.
30 This filing process is done both on a manual and a computerized basis. Whenever a PP reaches the HCJD, the secretary of the Head of the Department files a computerized form (which is similar to the form used for court cases), and after the completion of the process, the relevant documents are put in a file containing all the PPs from the same period. The data presented below is based primarily on our examination of the manual files of the department. In some cases we complemented that information by using the department's computerized database.
31 The PP files were not located at the HCJD official archive located in the archive of the OAG. Rather, they were concentrated and shelved at the HCJD offices. The PPs were located in dossiers and numbered according to the order by which they were filed in the dossiers. Accordingly, we sampled every file that was marked by numbers ending with either 1 or 5. Overall, we sampled 355 PP files. At some point during 1998 the department changed the filing system and the location of the PPs was changed such as to preclude us from gathering data for the period after March 1997.
32 Interviews with IT and HR.
33 The numbers in Figure 1 refer only to PP files, i.e. to PPs that were filed and indexed by the HCJD. As explained above, the number of PPs was actually much higher since many PPs were disposed by the HCJD without being filed or indexed. The procedures of filing and indexing PPs were not changed during this period. Therefore, one may assume that the constant rise in number of PPs reflected in Figure 1 is representative for the increase of the general number of PPs throughout this period. The number of files for 1997 is an estimation based on the files issued during the first three months of 1997. The number for 1990 is based on files found in the HCJD archives for the last two months of that year. In 1999 the HCJD itself reported that it disposed over 600 PPs, see Fogelman, Uzi, “The High Court of Justice Department in the Attorney General Office” (2001) 6 Mishpat Umimshal 173, at 178Google Scholar.
34 Including full and partial success.
35 Including withdrawal by the petitioner.
36 Including petitions that were moot or cases that were still pending at the time of the research.
37 Interview with KS (29.6.96); Interview with IN (9.3.97).
38 Interview with IZ (24.2.97).
39 See generally Dotan 1999, supra n. 2, at 328. The end of the Intifada and the beginning of the Peace Process (the Oslo Declaration of Principles in September 1993) did not bring about an immediate decrease in the number of violations of human rights in the territories. Paradoxically, it caused, to some extent, an increase in the number of Palestinian grievances. The use of infringing measures (such as preventive detentions, or deportation orders by the Military Commander) did not stop, but has since been directed against members of Islamist groups who oppose the peace process. Likewise, restrictions on the freedom of movement of the residents of the territories did not lessen, and in fact became even more burdensome. See B'Tselem Report: “Bureaucratic Harassment; Abuse and Maltreatment during Operational Activities — The West Bank in the First Year of the Declaration of Principles,” September 1994; B'Tselem Report: “Impossible Coexistence — Human Rights in Hebron since the Massacre at the Cave of the Patriarchs,” September 1995 and Bisharat, George E., “Courting Justice? Legitimation in Lawyering under Israeli Occupation,” (1995) 20 Law & Soc. Inquiry 349, at 355–356CrossRefGoogle Scholar.
40 Interview with KS. Interview with IN.
41 See B'Tselem report: “Collective Punishment in the West Bank and the Gaza Strip.” November, 1990; B'Tselem report: “Violations of Human Rights in the Occupied Territories 1990/1991.”
42 Interestingly, the relative portion of PPs from the Territories in the current sample is even higher in comparison to our findings in regard to PPs issued during 1990-1995 (See Dotan 1999, supra n. 2, at 352), which was found to be “only” 43%. The difference between the two samples is explained by the fact that we found in the more recent sample that the relative number of Palestinian PPs between 1995 and 1997 actually rose to around 64%. This finding is somewhat unexpected in view of the fact that the Intifada ended in 1993. The beginning of the peace process, however, has not brought a decrease in the number of cases involving human rights violations, see Dotan 1999, at 352 and n. 56 infra. Apart from the rise in the relative number of Palestinian PPs after 1995, there are some additional discrepancies between the two samples that may be explained by the highly disorganized nature of the filing of PPs within the HCJD.
43 The data refers to those PP cases in which the time of procedure could be extracted from the files (i.e 172 cases out of 355 that form the overall sample number).
44 See Table 1 above and accompanying text.
45 Interview with IZ (24.2.97, p.12). See also interview with RR (former HCJ judge) 19.6.96 and interview with IN (5.4.98); interview with HN (9.1.97). The fact that lawyers experienced in HCJ litigation (see section 4 below) use PPs instead of litigation rather than a pre-trial procedure is also supported by the fact that in most cases of PPs that are dismissed by the HCJD, the petitioners do not bother to resort to the HCJ in order to challenge the department's position. While we could not verify in our sample the relative portion of dismissals to reach the court, it seems that in most cases PPs do not turn into court cases even if dismissed by the department.
46 The contention as to the failure of the bureaucracy at large and the legal apparatus of the Israeli bureaucracy (i.e., the in-house councillors of the relevant agencies) to cope with such a situation was frequently raised in my interviews. See interviews with RR (19.9.96); interview with IZ (24.2.97).
47 Interview with IL (human rights lawyer) (20.1.97); Interview with IN (HCJD senior, 5.4.98).
48 Interview with UM (5.3.97); interview with IL (20.1.97).
49 See section C above.
50 The fact that the procedure is not published is explained by HCJD staff by their fear that should the procedure be known to the general public, the department would be flooded by such petitions in a manner that would seriously compromise its ability to function. In interviews some HCJD members acknowledged their awareness of the fact that the existence of such a procedure known only to “in house” players raises serious questions on the constitutional level (Interview with IZ, 24.2.97).
51 For a discussion of political lawyers in the field of human rights litigation in Israel see Dotan, Y., “Public Lawyers and Private Clients: An Empirical Observation on the Relative Success Rates of Cause Lawyers” (1999) 21(4) Law and Policy 401–425CrossRefGoogle Scholar.
52 Cases classified under “other” in Figure 3 are cases where the PPs dealt with requests from administrative agencies to the HCJD to review a certain procedure or to render an advisory opinion as to the legality of a certain action. Although these cases were classified by the department as PPs, they did not always directly involve the interests of individuals or groups apart from the relevant agency.
53 The source of the data concerning petitions to the HCJ by NGOs is Dotan, Y. and Hofnung, M., “Interest Groups in the Israeli High Court of Justice: Measuring Success in Court and in Out of Court Settlements” (2001) 23 Law and Policy 1, at 13CrossRefGoogle Scholar. The data for PPs is, of course, limited to the Nineties, since the practice only began at this time.
54 Out of 77 PPs in which the petitioners were represented by interest groups, 63 were represented by three organizations that were extensively involved in litigation on behalf of residents in the territories (ACRI- Association of Civil Rights of Israel — 25 PPs; Hotline for Victims of Violence — 20; The Society of St. Ives — 18 PPs. This means that over 80% of organized activity of PPs were linked to civil rights litigation in the context of the territories. Organized litigation by HCJ petitions during the same period was more diverse. The three groups mentioned here were, however, among the repeat players in HCJ litigation, see Dotan and Hofnung, ibid., at p. 22 and n. 19.
55 In fact, the percentage of PPs issued by NGOs and public lawyers is even higher, and reaches (together) almost 50% if we neglect the cases that were classified in Figure 3 as “other”. The definition of political lawyers or the identification of a certain lawyer as politically motivated is far from simple. The difficulties in this respect led two leading scholars in the field to conclude that “providing a single, cross-culturally valid definition of the concept [of political lawyers] is impossible.” (see Sarat, A. and Scheingold, S., “Cause Lawyering and the Reproduction of Professional Authority” in Sarat, A. and Scheingold, S. (eds.) Cause Lawyering — Political Commitments and Professional Responsibilities (Oxford, 1998) 3, at 5Google Scholar. Among the accepted parameters for distinguishing political lawyers from other in the profession are the ambition to use litigation as a tool for social change, the tendency to feel ideologically committed to the cause related to the litigation, the lack of economic incentive etc. See also Dotan, supra n. 51, at 409-412.
56 For a discussion of the concept of “repeat players” in litigation see Galanter, M., “Why Do the ‘Haves’ Always Come Out Ahead: Speculations on the Limits of Legal Change,” (1974) 9 Law and Society Review 95–160CrossRefGoogle Scholar.
57 See also n. 55. No available data exists on the relative number of HCJ petitions issued by political lawyers, cf., Dotan, supra n. 51.
