An Overdue Reminder

‘Democracy is the worst form of government, except for all the others.’ [Winston S. Churchill]

“Israel’s political system suffers less than from instability than from a lack of accountability. Members of the Knesset [MKs] are not answerable to voters.” These sentences appear in the body of fellow blogger’s “The Electoral Reform Netanyahu Should Promote” of September 7, 2016 published in The Times of Israel. Dr. Emanuel Navon, the author, is an international relations expert who teaches at Tel Aviv University and at the Herzilya Interdisciplinary Center.

Navon reminds us of PM Netanyahu’s 2015 electoral unfulfilled promise to reform Israel’s voting system so as to free the prime minister from the permanent blackmail of his coalition partners. As a consequence, he draws attention to the current threats of the “junior coalition ultra-orthodox parties” over railway construction during the Sabbath.

Over the years, we have observed how time and again, in Israel, mid-sized and small parties are empowered to utilize disproportionate power. Efforts to reduce the influence of smaller parties have failed or backfired.

Perhaps the most glaring example of yet another parliamentary weakness was displayed by Tsomet MKs Gonen Segev and Alex Goldfarb , politicians who betrayed our trust and enabled Rabin to ratify Oslo. This was achieved by selling their votes for a ministerial appointment and a Mitsubishi respectively! No less an act of dishonesty and deceit was conducted by Sharon when he disregarded the platform on which he had been elected, resigned and created a new party fashioned on the ideas of his opposition!

The main thrust of Navon’s essay is to stress the established fact that Mks are not answerable to their voters. Stated differently, Israeli voters have no influence on the composition of the list they vote for on election day. He proposes an alternative system whereby they can be made answerable by facilitating influence on the composition of the list.

He also reminds us of the short lived separation of the PM and party vote which offered more failure than improvement It most certainly did not cure the problem of small and middle-sized parties overplaying their leveraging power. Increasing the electoral threshold to 1.5% in 1992, 2% in 2003 and to 3.25 % in 2015 created other problems.

What emerged and as predicted was an increase in a larger amount of small parties resulted in increased blackmailing of a PM by his partners. Clearly, Navon’s alternative would undoubtedly eliminate this shortfall.

Back in 2000, Professor Paul Eidelberg authored a book entitled, “Jewish Statesmanship, Lest Israel Fall. It is an all encompassing work which among 10 chapters addresses, Israel’s Flawed Declaration of Independence: A Partial Remedy, Israel’s Flawed Parliamentary System and A Jewish Democratic Constitution. for Israel.

As one of the alarming comments he makes in support of Israel’s needs for a Constitution, he reminds one that in the 1999 elections, 29 Knesset members hopped over to rival parties in order to obtain safe seats! Undoubtedly this is a glaring example of a political ‘system’ which is a disgrace as well as a disaster, “and only the ignorant along with self-serving politicians want to preserve it!”

Eidelberg took on the challenge to make Israel truly democratic by Jewish means and to make it more Jewish by democratic means. He also injects his mastery of American constitutional legislation into the equation. In discussing how the US and Israel’s governments differ, Eidelberg explains how The US House of Representatives had 435 members at the time, all individually elected and accountable to the voters in district elections, whereas Israel had nothing comparable.

As for political institutions, Israeli parliamentary is broke beyond repair. Eidelberg recommends the separation of the legislative executive, and judicial branches, setting up district elections so that elected representatives will be forced to represent constituents more than parties, establishing a bicameral legislature that gives limited but meaningful participation to non-Jews, and breaking the grip of bureaucrats on Israel’s public and economic life.

The majority of Israeli’s undoubtedly defend the “law of return” to the hilt. Paul Eidelberg proposes a bicameral parliament consisting of a Senate and a House of Representatives similar to the US but similar but superior given improved rules. For obvious rules, he states that only Jews, be they religious or not, will be qualified to vote for, or be members of the Senate. He quotes the Constitution of the Republic of Ireland as an example. Consider that in these times, the Joint Arab list is already projected to be the 3rd largest party in the next Knesset.

Further, the House of Representatives may recommend legislation to the Senate, which they may amend or reject, as it sees fit. But, if such recommendations are enacted into law, their juridical authority will be derived from the action of the Senate.

To Eidelberg, in the final analysis, any method which affects the relation between the rulers and the ruled is one of power. He wanted to shift power from parties to the people, whereas the leaders wanted to maximize their own power. “Aristotle taught this 2,400 years ago, and so did the Americans in 1987.”

A sampling of Paul Eidelberg’s proposed constitution follows. By his own admission it will require further elaboration.

Constitutional Provisions.
[1] All elected officials and civil servants shall duly affirm Israel’s paramount governing principle as a Jewish state.
[2] Any party that negates the Jewish character of the State will be excluded from participation in any national or local election and will also be subject to penalties of the law.
[3] Election campaigns shall be confined to 30 days and be financed solely by public funds.
[4] No person shall vote in any national election unless he has been a resident of Israel for one year.

A Constitutional Bill of Rights.
[1] The Land of Israel, of which the State is only the custodian, belongs exclusively and eternally to the Jewish people.
[2] Force majeure aside, no land under Israel’s sovereignty may be surrendered to any foreign power or entity.
[3] All residents of Israel will be guaranteed freedom of religion and freedom of speech and press. All residents of Israel shall have the right to establish their own religious and educational institutions, provided these are consistent with loyalty to the Jewish State.

The Senate.
[1] The Senate shall be composed of 72 members having a 6 year tenure. One third will be selected every 2nd year.
[2] To be eligible for membership in the Senate, a person must have knowledge of the Hebrew Bible, Jewish history and customs. This knowledge must be certified by secular and/or religious institutions of learning prescribed by law.
[3] The electoral threshold shall be prescribed by law, but shall not be less than 5%.
[4] No Senator may change his party affiliation during his term in office.
[5] The Senate shall have the power to declare war, provide for the common defense, and make all laws which shall be necessary and proper to promote the welfare and dignity of the Jewish Commonwealth.

The House of Representatives.
[1] Shall consist of 72 members having a tenure of 4 years. One half shall be chosen every 2 years.
[2]Te electoral threshold as per Senate.
[3] No Representative may change his party affiliation during his tenure in office.
[4] The House may recommend legislation to the Senate.
[5] The House will conduct public hearings, investigate public complaints regarding the State Administration, and suggest measures to remedy any administrative shortcomings and abuses.

The Judiciary.
[1] The judicial power shall be vested in a 9 member Supreme Court and in such inferior courts which the Senate may from time to time establish.
[2] The membership of the Supreme Court will include 3 professional and 3 rabbinical experts in Jewish law, all of whom, however must be knowledgeable of secular law.

As stated by Professor Eidelberg, his constitutional provisions were tentative and by no means complete. However, as a minimum, his book offered a significant framework in support of a real constitution.

In questioning, why no real progress has been made since, apart from the politicians who felt threatened by it, the majority of the Israeli public are unfamiliar with constitutional democracy while those from western countries seem reconciled to mediocrity.

Yet another fellow blogger, Canadian Michael Tweyman, in more recent times added to the debate with his “Israel Needs a Constitution” [Times of Israel Blogs, Dec, 30, 2014].

His opening is a testimony to how Tweyman viewed the subject at hand. ” If Bibi could put together a consensus for a real constitution, who could possibly object to the legitimacy of whatever results?” He recalled as a young Canadian law student, an early 2000 speaking engagement in which the words by former Supreme Court President Aharon Barak who claimed Israel had a constitution, left him aghast. Barak’s description of a constitution was one of the aggregate of laws passed in the same manner as any other law, without a special majority, and at various points in time!!

As a Canadian who had studied the “broad based negotiations and consensus required for constitutional changes in Canada,” he ” found Barak’s beliefs nothing more than a rationalization for advancing his own views of what ought to be.”

Tweyman is of the opinion that a certain similarity between Canada and Israel makes possible an adoption of a number of approaches to building its construction. In particular, he lists three reasons:
[a] Canada is similar to Israel being multicultural with a significant distinct minority group within its borders.
[b] Canada’s Charter of Rights and Freedoms is relatively modern, with principles that can be adapted to Israel’s needs.
[c] Canada’s constitution is a model for balancing a hierarchy of rights, something Israel requires constantly.

He equates how Canada deals with Quebec and Francophone rights with Judea and Samaria. This is in reference to culture and language. “To the extent they are acceptable in a free and democratic society, Arab culture and freedom of practice of the Muslim religion would be protected as well.”

There is also the matter of what he terms “enshrined primo facie discrimination permitted based on the historical circumstances that led to the formation of the country.” As an example, Tweyman points to Ontario where permissible discrimination on religion permits funding Catholic but not Jewish or private schools due to historical precedence.

He also stresses the importance for the people and not the courts to decide what is most important to the State’s identity and the need for Israel’s Supreme Court to be reined in. Canada’s Supreme Court is radically deferential compared to Israel’s high court which is almost a free-for-all of cases.

Michael Tweyman is critical of Israel’s Supreme Court delving into matters of security and foreign policy, best left to the Government. Further he notes that one purpose of a constitution is to define the role of judicial review. “If laws don’t offend the constitution , they are permitted; if they do offend the construction , they may be judicially reviewed and changed to the extent necessary.”

In conclusion, Tweyman proclaims that as a sign of Israeli maturity “ought to be the adoption of a Constitution” with the consequence of a stable, predictable framework for deciding the “constantly evolving issues it faces.”

About the Author
Alex Rose was born in South Africa in 1935 and lived there until departing for the US in 1977 where he spent 26 years. He is an engineering consultant. For 18 years he was employed by Westinghouse until age 60 whereupon he became self-employed. He was also formerly on the Executive of Americans for a Safe Israel and a founding member of CAMERA, New York (Committee for Accuracy in Middle East Reporting in America and today one of the largest media monitoring organizations concerned with accuracy and balanced reporting on Israel). In 2003 he and his wife made Aliyah to Israel and presently reside in Ashkelon.