by Hope for Israel Staff Writer
I begin this third installment in the series “Israel’s Democratic Troubles” with a personal comment.
I had planned to write an analysis of the power imbalances I see in the system of Israeli election and representation, with my conclusion being centered on the necessity for more direct representation in the Israeli legislation. I do still see this as being relevant. However, as the situation has developed in real time, I now see the issue of representation as one facet of a much more complex issue. Therefore, this article discusses the imbalanced distribution of power across the Israeli government as a whole, as opposed to simply within the Knesset itself, and presents voting reforms as one possible solution.
When Netanyahu won the Nov. 1 election and presented his coalition, it quickly became apparent that it would be one of the most divisive governments in Israeli history. Now a month and a bit into the government’s tenure, tensions have only risen. The one thing that the Israeli Government and Opposition seem to agree on right now (though they won’t admit it), is the existence of an imbalance of powers in the government. They don’t however on the source; the coalition would say that the Supreme Court has too much power, and the opposition that the coalition is abusing the power it already has.
This combustible disagreement is largely owing to the unclear separation of powers in the Israeli system of governance.
According to the French judge and thinker Montesquieu’s theory (which greatly influenced the US Constitution), a balanced democracy divides its power as follows:
The legislative branch writes law.
The judiciary branch interprets law.
The executive branch enforces law.
This is technically supposed to happen in Israel. In practice, the waters have been muddied.
There are a few causes for this.
Firstly, Israel is a parliamentary democracy, meaning, among other things, that its government is built of sitting members of Knesset (or parliament). A coalition of like-minded political parties must have a Knesset plenum majority of at least 61 seats to form a government after an election. This inherent legislative majority turns the Knesset into the de facto arm of the sitting government. Since Israel has only one chamber of parliament, this greatly weakens the legislature’s ability to act independently from the government.
Secondly, the Supreme Court, or judiciary branch of government, currently has the ability to overturn laws passed by the Knesset, where the justices do not find the law in question to be “reasonable.” This precedent of “reasonableness” was established by then-Chief Justice of the Supreme Court Aharon Barak in the 1990s. In effect, it gives the high court authority over the writing of new law, where in most democracies the role of the judiciary is merely to interpret existing law.
Thirdly, Israel has no constitution, which leaves Israel’s founding principles far too open to individual (and opportunist) interpretation, especially given the vast demographic evolution experienced by the country since its founding. The lack of a formal constitution also complicates the task of defining the role of each branch of government.
Since the Knesset is subject to both the sitting government (through a Knesset majority) and the Supreme Court (through the "reasonableness" clause), it is by far the weakest branch of the government in the Israeli structure. Logically, therefore, to rectify the balance of power, some check must be put on both Supreme Court (the judiciary) and Government (the executive), allowing the Knesset room to operate as an independent branch of federal government.
This issue was brought into the spotlight recently by Yariv Levin, who unveiled his new plan for judicial reform only a few weeks after receiving the portfolio of Justice Minister in the new government. His proposal is largely aimed at reining in the judicial overreach of the Israeli Supreme Court.
The main points in his proposal are:
- To introduce a Knesset override law (granting the Knesset the ability, with a plenum majority of 61 votes, to override SC rulings);
- To change the committee system by which Supreme Court justices are appointed (it would allow the executive and legislative branches some influence over the choice of justices):
- To remove the “reasonableness” clause, by which the SC can veto Knesset legislation.
Much of the Israeli public feel this proposal would undermine Israeli democracy and break the balance of powers in the government. The main reason for concern is the “override clause,” which would give an unprecedented amount of power to the Knesset (which remember, is controlled by the government) essentially crippling the high court. The fear is that the sitting coalition would then have no check to their power and could change legislation as they saw fit. In the worst-case scenario, Israel’s democracy could be rendered totally impotent.
The two other parts of the reform proposal have received much less attention, partially because of the outcry over the override clause. These other sections, the changes to the judicial appointments committee and the cancellation of the “reasonableness” clause, are logical. They could rein in the Court and give the Knesset more autonomy without compromising judicial independence. The fact is, it is only the override clause that gives pause, and the Court’s overreach could be at least partially checked without it.
The problem with Levin’s plan isn’t its intent to curtail the Court’s authority or to give power to the Knesset; the problem with the plan is its failure to recognize legislative dependence on the sitting government. As such, the issue cannot be solved simply by taking away power from the Court and giving it to the Knesset. The Knesset is not a fully autonomous branch of government. To effectively empower the Knesset, legislative independence must be established from the executive branch as well as the judicial one.
In summary, both sides of the disagreement have a point. The power the judiciary has over the Knesset currently is unhealthy. However, to give the Knesset essentially the selfsame power over the Supreme Court is also worrisome.
If Israel’s leaders are truly concerned for the wellbeing of her citizens and the health of her democracy, then there can only be one path forward: compromise. The most important thing is to cool the rhetoric and alleviate the worries of Israelis.
What can be done? I would like to offer some amateur suggestions for long-term legislative solutions to the power imbalance.
Firstly, the Knesset should prioritize the writing and ratification of a formal Constitution which clearly establishes the separation of powers between executive, legislative and judicial branches. Once the separation between government (executive) and Knesset (legislative) has been defined, the legislative branch could carefully and gradually be given more power.
Another legislative option, which could empower average Israelis, is the introduction of primary elections on a party basis. Some parties such as Likud and Avoda (Labor), already hold primaries, but this practice could be standardized and more publicized. Israelis would have to be party members to vote in the “primaries,” which could determine who would hold seats for a given party in the Knesset as well as the party’s leader. The number of seats a party received would still be determined by national election. This would make members of Knesset accountable to their voters instead of to their parties and would also raise Israelis’ understanding and awareness of the legislative platforms of lower profile individual politicians.
The passing of a full Norwegian law would also create a stronger separation between government and legislature. A Norwegian law requires a MK who has received a ministerial portfolio to resign from active duty as an MK in order to focus on ministerial work. The minister is then replaced by another member of their party. A partial Norwegian law already exists in the Knesset.
The government could also consider gradually integrating more municipal jurisdiction over local issues. This would empower Israeli citizens to be more directly involved in regional policy, could lighten the workload of the federal government, and could possibly help to diffuse cultural issues that are currently debated on the national level, such as the issue of public transportation on Shabbat.
The simplest (comparatively) way to begin is for lawmakers to agree to cross-party negotiations. It is this author’s opinion that Levin should pause the implementation of his plan and discuss the concerns of the opposition. The opposition should in turn temper their overly aggressive condemnation of the reforms and agree to sit down with Levin and Netanyahu. Compromise is the only way forward.
Again, most Israelis would agree that reform is necessary. It is my opinion that two thirds of Levin’s plan makes sense. If our leaders were willing to sacrifice their egos for the betterment of the country as a whole, then a compromise could be possible.
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