It’s Democracy, I Presume!

Dr. David Livingston, the famous British explorer who was presumed dead, upon his discovery by Henry Stanley in October 1871 near Lake Tanganyika, in Africa, was quoted as saying, “Dr. Livingston I presume!”  Paraphrasing the sentiment is exactly how I feel today about situation in Israel. Although most, especially from the US, are asking me the question is Israeli Democracy dead, I feel similar to Dr. Livingston in witnessing that it is not in fact dead, it is very much alive!

I have personally witnessed the democratic election of a new government.  The government has decided to pass some laws in a wholly legal manner.  There is a significant group of people who are concerned about the laws the government wants to pass.  These people have expressed their opposition by taking to the streets and protesting.  As the passage of these statutes was pending, the protesters decided to increase the protests, initiate strikes, and some key people resigned.

Those who supported the proposed laws have also decided to exercise their rights to protest in support of their adoption. In either case, nearly all the demonstrations, some exceeding 200,000 people have been mostly peaceful.  I have never seen a more vibrant application of Democracy in my 62 years on this planet.

And yet, from all around the world, we are seeing politicians, lay Jewish leaders, and others comment on the death of Democracy in Israel.  I attribute most of these sentiments to a total lack of understanding of Israel, current events, or historical context.  When listening to the news, or reading about the situation in Israel, most outlets provide a superficial observation of what is happening now with no effort put into understanding a very complex situation.

So how did we get here?  It begins with the Declaration of Independence signed by the Provisional Government of Israel.  The 12^th paragraph states (English Translation), “WE DECLARE that, with effect from the moment of termination of the Mandate being tonight, the eve of Sabbath, the 6^th of Iyar, 5708 (15^th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than 1^st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel”.”

The Constituent Assembly failed to draft a constitution. As it states on the Knesset website, “The Constituent Assembly was elected in Israel’s first general elections on January 25, 1949. The Constitution, however, was never completed. The first act of the Constituent Assembly was to pass the “Transition Law” by which it reconstituted itself as the “First Knesset.” The Assembly thereby became the Legislature of the State of Israel. A protracted debate ensued between those favoring immediate enactment of a constitution, and those who believed either that there should be no constitution, or at the very least, that the time was not yet ripe. The Knesset adopted a compromise, transferring the powers of the Constituent Assembly to subsequent Knessets, and introducing the idea of a constitution “by chapters” instead of one formal written document. The text of this resolution, known as the “Harari Resolution” after its sponsor, MK Yizhar Harari, read as follows:

The First Knesset instructs the Constitution, Law, and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State.”

Thus, in Israel, in lieu of a constitution defining the powers and limitations of Executive, Legislature, and Judiciary, over the years eleven (11) Basic Laws have been adopted.  These Basic Laws follow the same legislative process as drafting any other bill and passing it inti a law.  The bill is drafted in the Knesset and submitted to the Presidium who reviews, debates and then votes.  If approved, it is referred to a Knesset committee which prepares for the first reading.  There is no preliminary debate before the bill has its first reading in the Knesset.  After the reading, a vote is held and if it is passed it goes back to the committee for debate, revision, and submission for a second and third reading and vote. If it passes the third reading the bill is becomes a Law.

This means a pseudo constitution amendment can be drafted and approved with a simple majority. Comparing that to the United States, which requires ratification by two-thirds of both the House of Representatives and the Senate along with a ratification of three-fourths of State Legislatures.  Another way to view the US process is that no Constitutional law can be implemented without a super-majority.

Professor Netta Barak-Corren, on the faculty of Law and The Center for the Study of Rationality at Hebrew University of Jerusalem published in Hebrew, and also translated into English “The Levin-Rothman Plan for Altering the Justice System: A Comprehensive Analysis and Proposal for Consideration.”  In it she states there are valid reasons for modifying the current system of Justice.  In it Professor Barak-Corren noted the High Court of Justice (Israeli Supreme Court also known by the acronym HCJ) over the years had weakened the threshold requirements of which cases can be presented and accepted expanding the set of issues that could come before the court. In addition, an expansion of power occurred when the HCJ interpreted the 1992 Basic Laws concerning Human Rights as granting the power of judicial review over Knesset legislation.

The increased reach of the HCJ, along with other infrastructure issues, has created a rift over time between the Judicial branch versus the Executive and Legislative branches of government. This is not a new issue to Israeli politics and many have discussed and debated how to reform the government. The latest proposal to address these issues, the coalition has proposed the Levin-Rothman Plan.

I am not going to debate the perceived merits or shortcomings of the plan. I just think that it is a valid issue that should be addressed; however, if we are truly reinforce the Democracy in Israel, that we must not address Judicial Reform in a vacuum. We need to strengthen the Israeli Democracy by looking at all the issues today, convening a Constitutional Committee and writing a Constitution not by chapters, but in full. We need one that is not passed by a simple majority; we need one that is ratified by a super-majority.

Regardless what has occurred, it is very clear to me, that Democracy in Israel is alive and well, and will continue to be so in the future. I believe, with complete faith in Hashem and the people of Israel, that Israeli Democracy will continue to strengthen and grow to be a beacon of light unto all the nations of the earth.