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The Israel Ombudsman: An Appraisal

Published online by Cambridge University Press:  12 February 2016

Peter Elman
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Extract

Very soon after the establishment of the State (and as an important part of its constitutional structure) the office of State Comptroller, responsible to the Knesset alone and independent of the Government, was established under statute—the State Comptroller Law of 1949. After undergoing a number of amendments, the Law was eventually replaced in 1958 by a Consolidated Version but without any substantive change being made in the functions and powers of the Comptroller, a fact which goes far to demonstrate the proven worth of the office.

Briefly, the functions of the Comptroller are to carry out “inspection of the finances and the management of the finances and the property and administration of the State and of the bodies subject to the inspection of the Comptroller, and to perform the other functions assigned to the Comptroller by this Law”.

The bodies subject to inspection include, in addition to every government department, state enterprises and institutions and local authorities, persons or bodies holding, otherwise than under contract, or managing or controlling any state property or funds in the management of which the Government has a share or which are made subject to inspection by the Knesset or by agreement with the Government.

Type
Articles
Information
Israel Law Review , Volume 10 , Issue 3 , July 1975 , pp. 293 - 323
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1975

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References

1 Hereinafter called “the Comptroller”.

2 Principally enlarging the range of bodies subject to inspection and extending the scope thereof to moral standards: see infra text at n. 5.

3 State Comptroller (Consolidated Version) Law, 1958, sec. 1 (12 L.S.I. 107).

4 Sec. 9, ibid. There are other bodies, “subsidiary” to those mentioned, which may be inspected if the Committee or the Comptroller so decides.

5 Sec. 10, ibid. Emphasis added.

6 See Klinghoffer, H., “Israel's Ombudsman” (1972) 4 Mishpatim 148Google Scholar and “Der Ombudsman in Israel”, Festschrift für Karl Loewenstein (1971) 202Google Scholar.

7 At pp. 87–89. See also Annual Report, No. 5, pp. 141–43 and No. 7, pp. 110–155.

8 At p. 145.

9 (1970) 56 Divrei HaKnesset 592Google Scholar.

10 Annual Report, No. 2, p. 10. Cf. Annual Report, No. 9, pp. 9, 322.

11 At p. 26 et seq.

12 Cf. Annual Report, No. 22, p. 8.

13 Hereinafter called “the Commissioner” and each of his annual reports “Report”.

14 Cf. the Comptroller's Annual Report, No. 22, p. 8.

15 Moses, S., “The State Comptroller” in Channels of Public Control in Israel (1957, in Hebrew) 18Google Scholar.

16 The reduction in 1967 was the momentary effect of the Six Day War: see the Comptroller's Annual Report, No. 18, p. 6. The monthly figures showed an increase over those of 1966.

17 See Appendix, p. 322.

18 See his Annual Report, No. 14, p. 17.

19 The figures are taken from the Statistical Abstract.

20 The Comptroller's Annual Report, No. 13, p. 12.

21 Annual Report, No. 22, p. 8.

22 Cf. (1970) 56 Divrei HaKnesset 584, 586Google Scholar.

23 Denmark introduced the Ombudsman in 1955 and Norway and New Zealand in 1962. In Britain, active preparations were already afoot towards the same end. The same is true of France. The question had also been widely canvassed internationally: Boim, L., The Ombudsman (1965, in Hebrew) pp. v–ixGoogle Scholar.

24 See e.g., (1970) 56 Divrei HaKnesset 585Google Scholaret seq.

25 Ibid., and generally Report I, p. 9.

26 As claimed by Klinghoffer, op. cit. supra n. 6, at p. 149.

27 25 L.S.I. 111 (hereinafter called “the Law”).

28 Gellhorn, W., Ombudsman and Others (1966) pp. 7, 51, 104, 158, 424CrossRefGoogle Scholar (hereinafter cited as “Gellhorn”).

29 Secs. 2, 4A, 24, 25, 29.

30 Secs. 5 and 6.

31 Sec. 4.

32 Klinghoffer, op. cit. supra n. 6 at p. 149.

33 Mescheriakoff, A. S., “Le Médiateur: Un Ombudsman Français” (1973) 26 Bulletin de l'Institut International d'Administration Publique 270Google Scholar.

34 Sec. 22 (a) of the Law. Cf. Klinghoffer, op. cit. supra n. 6 at p. 150. The French Médiateur, exceptionally appoints his entire staff for the duration of his term of service: Mescheriakoff, op. cit. supra n. 33.

35 Gellhorn, pp. 422–23.

36 Report I, p. 14. See Table II, Appendix, p. 322.

37 Report II, p. 43.

38 Report III, p. 36.

39 Gellhorn, p. 116, n. 56.

40 Whitaker's Almanack.

41 See Table II, Appendix, p. 322.

42 See ibid.; Report II, p. 41.

43 Gellhorn, pp. 76, 119, 213.

44 Sec. 33. Provision is made for ensuring that complaints by prisoners are forwarded by the prison authorities in sealed and unopened envelopes: sec. 35.

45 Sec. 37.

46 See Zamir, I., Administrative Procedure in Israel (1974, in Hebrew) 27Google Scholar.

47 Sec. 43.

48 Moses, op. cit. supra n. 15 at p. 18.

49 The Commissions of Inquiry Law, 1968, does not meet the problem: see Elman, P., “The Commissions of Inquiry Law, 1968” (1971) 6 Is.L.R. 398Google Scholar.

50 Report III, p. 42.

51 (1971) 60 Divrei HaKnesset, 2229, 2232, 2258Google Scholar.

52 See Table II, Appendix, p. 322.

53 Gellhorn, pp. 27, 65, 175, 208–11, 427–28; see also Rowat, D., The Ombudsman (1965) pp. 29, 34, 67Google Scholar (hereinafter cited as “Rowat”).

54 Foulks, D., “The Parliamentary Commissioner's Discretion” (1971) 34 M.L.R. 386–87, 377Google Scholar.

55 Not in accordance with the mission de service public of the investigated body.

56 Secs. 7 and 8 of the Bill of 1964, printed in Rowat, pp. 300 et seq.

57 See Appendix, p. 323.

58 Gellhorn, p. 29; cf. also sec. 7(1) of the Canadian Bill: Rowat, p. 301.

59 Gellhorn, pp. 20, 71, 76, 122 (n. 67), 173.

60 (1970) 56 Divrei HaKnesset 589Google Scholar.

61 See supra p. 293.

62 (1970) 56 Divrei HaKnesset 587Google Scholar.

63 Report II, pp. 39–41; cf. Report III, p. 19.

64 Report I, p. 101.

65 Report II, p. 105.

66 Report III, pp. 64–66.

67 Klinghoffer, op. cit. at pp. 153–55, who also draws attention to ministerial committees to which the Government may delegate some of its executive functions, as well as ministers without portfolio who may carry out administrative tasks but not having a department may be entirely immune.

68 Military Justice Law, 1955 (Amendment no. 6, 1972) secs. 542–58 (26 L.S.I. 157).

69 Sec. 37 of the Law. In the Bill, instead of the words “or involving, etc.” there appeared “or (are) arbitrary”.

70 This may be compared with the almost identical provisions in the English Act of 1967.

71 See Kaddar, S., “The Ombudsman of Jerusalem” (1968) 9 Public Administration in Israel and Abroad 176Google Scholar.

72 Cf. Gellhorn, p. 3.

73 Cf. Marshall, G., “Maladministration” (1973) Public Law 33Google Scholar.

74 A. Bexelius in Rowat, pp. 23–24; cf. p. 42. See also St. Rudholm, ibid. at p. 17.

75 U. Lundvik, ibid. at p. 47.

76 Gellhorn, pp. 9, 10; I. M. Pederson in Rowat, p. 76.

77 P. Kastari in Rowat, p. 60 et seq.; cf. Gellhorn, p. 49 et seq., and p. 58 et seq.

78 Gellhorn, pp. 98–99.

79 Ibid. at p. 156 et seq., and p. 168 et seq.; Rowat, p. 96 et seq.

80 Foulks, op. cit. supra n. 54 at p. 381.

81 See Zamir, I., “The Jurisdiction of the High Court of Justice” in Studies in Law in Memory of Abraham Rosenthal, ed. Tedeschi, G. (1964, in Hebrew) p. 225Google Scholaret seq.

82 Negev Building and Development Ltd. v. Minister of Defence (1974) (II ) 28 P.D. 449.

83 Zamir, op. cit. supra n. 46 at p. 8.

84 Klinghoffer, H., “Die Begründung Von Verwaltungsbescheiden” in Israel Reports to the 8th International Congress of Comparative Law (1970)Google Scholar. See also Pelley-Karp, Y., “The Israel Statement of Reasons Act, 1958” (1963) 12 A.J.C.L. 72, 74Google Scholar.

85 Chokron, L., “Statement of Reasons and Time Limit for Administrative Decisions” (1972) 7 Is.L.R. 127, 138–39Google Scholar.

86 Report I, p. 29.

87 Report II, p. 24.

88 Pelley-Karp, op. cit.; Chokron, op. cit. at p. 128.

89 Per Silberg J. in Breslov v. Minister of Commerce (1949) 2 P.D. 330, 334, cited in Zamir, op. cit. supra n. 46 at p. 35.

90 Zamir, op. cit. at pp. 37–48.

91 Ibid. at pp. 49–51.

92 Id. “The Jurisdiction of the High Court of Justice”, op. cit. supra n. 81 at p. 247 et seq. and p. 254 et seq.

93 Cf. (1971) 60 Divrei HaKnesset 2229Google Scholar.

94 See Table II, Appendix, p. 322.

95 See Akzin, B., Theory of Government (1966, in Hebrew) vol. 2, pp. 256, 262–63Google Scholar.

96 Report II, p. 45; III, p. 41.

97 See Gellhorn, pp. 110–11.

98 Mescheriakoff, op. cit. supra n. 33 at pp. 255–57.

99 See e.g., Report III, pp. 46–47.

100 Dudai v. Harel (1971) (II) 25 P.D. 554, cited in Report II, pp. 12–13.

101 See, e.g., Report I, pp. 51–52, 54; II, pp. 50, 102; III, p. 45.

102 In New Zealand, only two grounds exist for discontinuance—if some other remedy should properly be pursued and if in all the circumstances further investigation is considered unnecessary.

103 See Appendix, p. 322.

104 Report II, pp. 41–42.

105 And perhaps a prison sentence; the matter is not clear in the light of sec. 11 (c) of the Commissions of Inquiry Law, 1968, which is incorporated in the present Law by reference.

106 See the somewhat similar provisions regarding the Parliamentary Commissioner in the United Kingdom (who, however, must hold his investigation in private) and the New Zealand Ombudsman: Gellhorn, p. 125.

107 See e.g., Report I, p. 63; II, p. 50; III, p. 68.

108 See e.g., Report I, pp. 83–84; II, pp. 77–78; III, p. 69.

109 See e.g., Report I, p. 106; II, pp. 108–10; III, p. 59.

110 Gellhorn, pp. 120, 139 et seq.

111 (1970) 56 Divrei HaKnesset 585–86Google Scholar.

112 (1971) 60 Divrei HaKnesset 2219Google Scholar.

113 Report III, p. 29.

114 Ibid.

115 (1970) 56 Divrei HaKnesset 652Google Scholar.

116 Express provision therefor in the Bill was omitted from the final Law.

117 86 such summaries appear in Report I (2.6% of completed cases), 100 in Report II (2.7%) and 90 in Report III (1.9%).

118 Gellhorn, p. 13.

119 Ibid. at p. 14.

120 (1970) 56 Divrei HaKnesset 841Google Scholar.

121 The figures are taken variously from the Statesman's Year-Book, Gellhorn, Rowat and (1971) Public Law 39, (1972) Public Law 204 and (1973) Public Law 135.

122 Report I, pp. 19–20. See also Report II, p. 22.

123 See Table II, Appendix, p. 322.

124 Appendix, p. 323.

125 Report I, p. 19. It has been surmised that the surprisingly few complaints which the Parliamentary Commissioner in England has to deal with is due to the high standards of the British Civil Service: Jackson, P., “The Work of the Parliamentary Commissioner” (1971) Public Law 37, 49Google Scholar.

126 (1970) 56 Divrei HaKnesset 582Google Scholar, with Biblical illustrations.

127 Cf. Report II, pp. 24–28.

128 Report III, p. 37 et seq.

129 Ibid.

130 See Lieberman, H. R., “Israel's Legal Aid Law: Remedy for Injustice?” (1974) 9 Is.L.R. 413Google Scholar.

131 (1970) 56 Divrei HaKnesset 588Google Scholar.

132 The High Court of Justice has presumed, rightly or wrongly, that generally the word of the Commissioner will be heeded in letter and spirit through the force of public opinion: Dudai v. Harel, supra n. 100 at p. 555.

133 Cf. Gellhorn, p. 192.

134 Report II, p. 74–75.

135 See e.g., Report III, pp. 47–48.

136 See e.g., ibid. at pp. 55, 59.

137 The Comptroller had much earlier reported to the same effect: Annual Report, No. 10, p. 7.

138 Report I, pp. 26–27.

139 Report II, p. 23. The figures for the Ministry of Communications in Table III seem to confirm this.

140 But see Table III.

141 Report III, p. 19.