It would appear that we will have a government, at last. Knesset is currently legislating to allow Netanyahu and Gantz to form the government. However, there are two problems with the current arrangement: it requires rewriting several laws, including some of our Basic Laws without any public input, and it has taken way too long for our politicians to come to an agreement.
It might feel natural to blame our leaders for those problems, and to a certain extent, they shoulder the blame for what has happened. Nevertheless, I would like to argue that those problems are systematic and that they stem from the same root – the fact Knesset simply has too much power. This power is what makes politicians fight so hard to gain control of the parliament, and this same power allows Knesset to amend Israel’s Basic Laws as it sees fit.
Israel is an exceptionally strong parliamentary republic. Knesset is enjoying something called parliamentary sovereignty – an ability to make or unmake any law as it sees fit. The Supreme Court of Israel in its capacity as the High Court of Justice can decree the laws to be unconstitutional if they are inconsistent with the Basic Laws. At the same time, Knesset can easily adopt new Basic Laws and amend the existing ones – Basic Law: Freedom of Occupation, Basic Law: the Government, Basic Law: Referendum and Basic Law: Israel as the Nation-State of the Jewish People require 61 votes in 3 readings to amend, a mere absolute majority. Only the Basic Law: Knesset contains several sections that require a qualified majority of 80 MKs to amend. All other Basic Laws can be amended by a simple majority. An absolute majority is required, in practice if not in theory, to form a government, and to pass more controversial laws. All of the arguments above lead to a simple conclusion – Knesset is way too powerful.
Such a situation is almost entirely unprecedented – to my knowledge, only New Zealand has similar legal provisions in that it allows a unicameral Parliament to pass almost any law, without consulting with any other body (in New Zealand, a referendum or a qualified majority of three-fourths of all MPs is required if certain laws regarding the election of Parliament are amended; furthermore all bills must be resented for the Royal Assent before becoming Acts of Parliament, but the Royal Assent is granted almost automatically). In other countries, where parliamentary sovereignty is recognized, there exist real checks and balances:
The UK Parliament is bicameral with an unelected House of Lords serving as a check on the elected House of Commons (this is true even when considering the power of the House of Commons to override the House of Lords and the ability of an incumbent PM to appoint new Lords).
In Finland, Eduskunta needs a two-thirds qualified majority to amend the Constitution.
Swedish Riksdag can only adopt amendments to the Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression if the same amendment has been adopted in two separate parliamentary sessions, which are separated by a general election. The Riksdag Act can be amended either in a manner described above or by a three-fourths qualified majority of all Members of Parliament.
It is clear to me that significant reform is necessary to fix the Israeli political system, and one way to do this is to introduce a check on the power of Knesset to make laws.
So, let us explore how one could limit the powers of the legislature in Israel. The first thing that comes to mind is the establishment of a strong executive, directly elected by the people, such as the US President. It would resolve some problems we are facing right now: it would create a government directly by the will of the people, thus making protracted negotiations unnecessary, and such a government would be far more stable than what we have now. Ordinary laws would require a signature of such an executive to become law. At the same time, it would create significant problems: the legislative and the executive branches would no longer be aligned, and there would be a real possibility of a US-style government lockdown happening. I do not think I need to elaborate why such a lockdown would be disastrous to any state in Israel’s position. Furthermore, the creation of a US-style presidency would do little to temper Knesset’s power to create and amend Basic Laws. I am also wary of putting too much power in the hands of a single person.
Another option is to give the Supreme Court broader judicial review powers. The Supreme Court enjoys broader support than, for example, Knesset among Israeli citizens. However, the Supreme Court has been on many occasions been accused of being un-democratic; specifically, the composition of the Judicial Selection Committee draws severe criticism. I do not intend to explore in this post whether such assertions are true – what is important is the fact that a considerable part of the population of Israel considers the Supreme Court to be undemocratic and this part of the population would consider decisions of the Court to be illegitimate.
Furthermore, even if the Supreme Court was able to rule the laws unconstitutional, the problem of the Basic Laws remains. On what basis would a Supreme Court rule Basic Laws to be unconstitutional? Some legal scholars have argued that the Supreme Court should judge those matters based on Israel’s Declaration of Independence, but I find this arrangement to be unsatisfactory – if the Declaration of Independence cannot be amended, it would lead to an absolute entrenchment of some portions of the law.
So, if neither the Judiciary nor the Executive is well suited to curb the powers of the Knesset, something else needs to be done, and I believe I have just the solution. Instead of creating a system of checks and balances within the government, I propose creating a system of checks exercised by the people directly. I suggest transferring part of the powers of the Knesset to the people themselves.
I am proposing the following model:
All new Basic Laws and all amendments to the existing Basic Laws are adopted by the way of a referendum, with a supermajority of votes in favour of a law required for it to pass.
All new Basic Laws and all amendments to the existing Basic Laws are excluded from judicial review.
All ordinary laws are to be passed by Knesset and are subject to the judicial review by the Supreme Court.
The Knesset retains the right to propose the Basic Laws for a referendum. The Knesset can propose Basic Laws on any topic.
10% of eligible voters can submit a Basic Law on any topic for a referendum.
5% of eligible voters can request a referendum to be held on an ordinary law recently passed by the Knesset. If a simple majority of voters vote against the law, it is repealed with immediate effect. Quorum is required for a vote to be considered valid. This right can be exercised only within a certain timeframe after the law has been promulgated.
15% of voters may request a referendum to be held on the question of early dissolution of Knesset. If in the referendum a simple majority of voters vote for an early dissolution of the Knesset, it is dissolved, and a new election is called. Quorum is required for a vote to be considered valid.
I would now like to explain why I am suggesting exactly those measures. First, I would like to explain the reasons for the required supermajority in article 1.
Semi-direct democracy (representative democracy with elements of direct democracy), unfortunately, is extremely easy to exploit by rich and powerful and can lead to the creation of the dictatorship of the majority. Any successful direct democracy must be designed in such a way as to avoid this, even before meeting any other requirements. I deliberately did not specify the exact number required for such a supermajority because this topic alone needs several posts to even explore alternatives, but such a requirement is clearly necessary.
Of course, some might be surprised that I did not include in my proposals an opportunity for people to pass ordinary laws directly. Again, the reason for this is simple. If a supermajority were to be required to pass a Basic Law, then surely ordinary law would need to be passed without such a requirement. This would immediately create a danger of the dictatorship of the majority, as I do not expect the Supreme Court being too keen on striking down laws adopted directly by the people. And even if they were brave enough to do something like that – how could we possibly justify unelected judges striking down a law adopted by the people themselves?
The requirement for a quorum in points 6 and 7 is merely a way to stop a minority repealing a popular law or dissolving a Knesset simply by chance, for example, when supporters of the law or the Knesset fail to show up for an election. Again, the specific numbers for a quorum are up for debate.
I have explained only some of the points I have suggested, but I think all other points are self-explanatory. Furthermore, the model that I have suggested does not require Israel to agree upon a codified constitution immediately. I would have preferred Israel to have such a constitution, but I cannot imagine that happening anytime soon.
I do not think that merely introducing elements of direct democracy would automatically fix all the problems with Israeli politics. For example, I think that we should introduce a directorial system of government instead of a present system, which gives to much power to the Prime Minister. However, any such discussions are too complex to fit into a single blog post. I also recognize that even a referendum might be illegitimate in the eyes of many Israelis – one just needs to read this article to understand why. However, I still think that we need to radically curb the power of Knesset, and, by extension, the power of any government, which controls it, and I believe that an introduction of a semi-direct democracy is the way to do it.