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Israel Journal of Health Policy Research
Published in: Israel Journal of Health Policy Research 1/2018

Open Access 01-12-2018 | Original research article

A neo-institutional analysis of the hidden interaction between the Israeli Supreme Court and the Ministry of Finance: the right to healthcare services

Authors: Daniel Sperling, Nissim Cohen

Published in: Israel Journal of Health Policy Research | Issue 1/2018

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Abstract

Background

Under structural conditions of non-governability, most players in the policy arena in Israel turn to two main channels that have proven effective in promoting the policies they seek: the submission of petitions to the High Court of Justice and making legislative amendments through the Economic Arrangements Law initiated by the Ministry of Finance. Nevertheless, an analysis of the principal trends emerging from the High Court of Justice rulings and legislative amendments through the Economic Arrangements Law indicates that these channels are open to influence, primarily by forces that are essentially neo-liberal. Little is known about the effects of these trends on the right to healthcare services, which in Israel has not been legislated as an independent constitutional law in Basic Laws.

Methods

We use four major legal cases decided by the Supreme Court of Israel in the past 10 years where the Court reviewed new legislative initiatives proposed by the Economic Arrangements Law in the area of healthcare. We utilize an institutional approach in our analysis.

Results

A neo-institutional analysis of the legal cases demonstrates that petitions against the Economic Arrangements Law in the area of healthcare services have been denied, even though the Court uses strong rhetoric against that law and the government more generally in addressing issues that concern access to healthcare services and reforms in the healthcare system. This move strengthens the trend toward a neo-liberal public policy and significantly weakens the legal protection of the right to healthcare services.

Conclusion

In deciding petitions against the Economic Arrangements Law in the area of healthcare, the Supreme Court allows the Ministry of Finance to be a dominant player in the formation of public policy. In doing so, it may be promoting a goal of strengthening its position as a political institution that aspires to increase the public’s trust in the judiciary and especially in the Supreme Court itself, in addition to exercising judicial restraint and allowing more leeway to the executive and legislative branches more generally.
Appendix
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Footnotes
1
Because non-approval of the Budget Law three months after the start of the fiscal year amounts to a decision to dissolve the Knesset, passing the law is guaranteed. When the bill is not linked to the Budget Law, the government announces that it regards voting for the law as a vote of confidence, thereby guaranteeing its approval. See, for example, High Court of Justice Ruling 4885/03, Poultry Breeders Union in Israel vs. the Government of Israel, Ruling 49 14(2) (Hebrew).
 
2
Throughout the years there has been an increase in the number of issues regulated by the Law of Economic Arrangements and a dramatic rise in the number of provisions in the law. For a comparative review, see [97].
 
3
In the past, all of the issues of the Arrangements Law were transferred to the Finance Committee. In recent years, some of the issues have been transferred to the Finance Committee (at the request of the Government), while some of them were transferred to the other Knesset committees for discussion and decision, according to their areas of activity. Nevertheless, it is the Finance Committee that presents the bill as a single unit for a second reading and third reading in the Knesset. To pass a bill in the Knesset, it must be voted upon three times.
 
4
Although recently, and following criticism of the Law of Economic Arrangements procedure, the bill has been divided up for debate among the various Knesset committees, most of the bill is still debated only in the Finance Committee [98] and after it is approved on the first reading and discussed in one of the Knesset special committees, it is forwarded to the plenum as one whole piece for approval on the second and third readings [99].
 
5
Note that while politicians play important role in setting the budget, economic policy and health policy and they may also narrow the range of options available to bureaucrats, in Israeli politics the Ministry of Finance generally, and the budget division specifically, has a great deal of power and political standing that surpasses that of other countries that are members of the OECD [100].
 
6
For exceptions with regard to recognizing the Court’s authority to intervene, see Additional file 1.
 
7
There is an argument that the Law of Economic Arrangements is a law (or norm) situated below a regular law in the pyramid of norms, and therefore it cannot amend laws of a constitutional nature. There is debate about this position (Golan, 2007–8: 267). In this article we regard the Law of Economic Arrangements as having the same status as a regular Knesset law.
 
8
For the legal rules on this notion, see Additional file 2.
 
9
The Court observed that the advantages of the Law in terms of efficiency do not outweigh the principle of the separation of powers and the principles of representative democratic rule. Therefore, any use of this Law should be informed and limited ([29]: 35–6). In the Court’s opinion, the fact that the Knesset has the authority to undertake a legislative process along the lines of the Law does not mean that there would never be a place for judicial intervention in the legislative process ([29]: 41–2).
 
10
This transformation was primarily facilitated by the school of thought developed by John Rawls ([101]: 135–6).
 
11
This is also the reason, for example, that advocates of the strict libertarian perspective, such as Robert Nozick, object to the notion of taxation as a means of promoting social welfare.
 
12
Compare the words of Aharon Barak, who until 2006 was the president of the Supreme Court, according to which “human dignity is not a socialist program” ([102]: 419).
 
13
Compare the High Court of Justice Ruling on the Council for Citrus Fruit Marketing [33].
 
14
In particular the Court referred to the principle that intervention in legislative processes should occur when there is substantive harm to the principle of Knesset members’ participation.
 
15
In a later Supreme Court decision in the matter of Davidov, the argument was again put forward that not including life-saving medication violates the constitutional right to healthcare services. The Supreme Court referred to Luzon and stated that the question of whether a constitutional right to healthcare services exists had not yet been settled [80].
 
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Metadata
Title
A neo-institutional analysis of the hidden interaction between the Israeli Supreme Court and the Ministry of Finance: the right to healthcare services
Authors
Daniel Sperling
Nissim Cohen
Publication date
01-12-2018
Publisher
BioMed Central
Published in
Israel Journal of Health Policy Research / Issue 1/2018
Electronic ISSN: 2045-4015
DOI
https://doi.org/10.1186/s13584-018-0261-9

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