The Foundation for Constitutional Democracy


10 Short Position Papers - II

Filed under: Knesset/Legislative Papers — admin @ 1:35 pm

II - How to Increase the Power and Dignity of the Knesset
Prof. Paul Eidelberg

The 1949 Transition Law renders the Knesset the most powerful branch of Israeli government, if not the most powerful legislature in the world. In fact, however, the Knesset is not only weak, but it is losing more and more of its remaining power to the Supreme Court. This is ironic, because the Supreme Court, unlike its American counterpart, is not a co-equal branch of government. To the contrary, it derives its legal power from the Knesset! Nevertheless, the Court now acts like a super legislature, arousing criticism from former Supreme Court justices as well as ­from politicians and academics across the political spectrum.

A more important factor that weakens the Knesset is fixed party lists—something rare in the democratic world. The system of fixed party lists makes MKs dependent on their party leaders in the Government (where more than 80% of legislation and almost all major legislation originates). Since party leaders head the cabinet ministries, MKs can’t effectively fulfill the function of administrative oversight. This is why the State Comptroller annually reports so much inefficiency, waste, and corruption in the bureaucracy.

Also, the low electoral threshold of 1.5% fragments and paralyzes the Knesset (which is one reason why the Supreme Court has become a super legislature). It should be noted that the Knesset has never toppled a Labor- or Likud-led government on a vote of no confidence. Basic Law: The Government stipulates that “The Government can do in the name of the State, subject to any law, any act whose doing is not enjoined by law upon another authority.” Hence the Government can declare war, make treaties with states—even terrorist organizations—and change the exchange rate without consulting the Knesset!

To remedy this situation, it will be absolutely necessary to establish regional elections—the system used in 74 democratic states. This will give MKs a base of power in their constituencies. An MK will then have to make a balanced judgment concerning the interests of his constituents, his party, and his own conscience. We recommend either the “Personalized” Proportional Representation system used in some European countries, or the Preferential Vote system used in Australia. Whatever system is proposed, it should be tailored to Israel’s political geography, and in such a way as not to have too adverse an affect on the existing distribution of seats in the Knesset.

At the same time, however, the electoral threshold should be raised to 5% (Ben-Gurion once proposed a 10% threshold!). A 5% threshold would reduce the number of parties or party coalitions in the Knesset to four or five. This would improve the Knesset’s performance. It would also streamline the Government and enable it to pursue more coherent and resolution national policies. The would promote national unity and security.

The Knesset should also be empowered to ratify treaties, but only after its members have had 30-day period in which to conduct public hearings. Also, ratification should require at least a three-fifths vote of a Knesset plenum. These reforms would increase the power and elevate the dignity of the Knesset. (This in itself would tend to restrain the “judicial activism” of the Supreme Court.)

Finally, it should be emphasized that a truly representative democracy requires regional elections. And only a Knesset based on regional elections will be moved by public opinion to enforce Basic Law: The Knesset, which prohibits any party that negates the Jewish character of the State.