Do it right

Avigdor Lieberman has focused media attention on Israel’s system of government by conditioning his entry into the coalition on radical changes. Yet Lieberman is far from the only person advocating governmental reform. Various citizen lobby groups are pushing this issue, and a few organizations have even prepared draft constitutions. The Knesset Constitution Committee was working on a constitution before the March elections, and planned in this context to consider changing the system of government. And President Moshe Katsav appointed a blue-ribbon commission to examine this issue; its recommendations will be submitted soon.

The various proposals offer a wide variety of ideas. But many of them share a common flaw: a failure to create checks and balances among the three branches of government, in order to prevent any one branch from accumulating excessive power.

Lieberman’s proposal is an excellent example. Though he claims to have modeled his system after that of America, it contains none of the checks and balances included in the US Constitution. For instance:

• In America, while the president appoints the cabinet, the Senate must confirm his choices. Lieberman would give the president sole authority over cabinet appointments.

• In America, while the president is responsible for foreign policy, treaties require approval by a two-thirds majority of the Senate. In Israel, by law, no Knesset approval at all is needed; cabinet approval is sufficient. And while most prime ministers have submitted major treaties to the Knesset as a courtesy, a special majority has never been required; simple majority approval has always been enough. Since Lieberman’s bill leaves this situation unchanged, it would in fact enable the president to sign binding treaties virtually singlehandedly, needing only the consent of a hand-picked cabinet formed with no Knesset input.

• In America, since congressmen are elected by district rather than by party slate, Congress can be controlled by the opposition. Presidents also sometimes face opposition from members of their own party, as congressmen ultimately answer to their constituents rather than the president. Lieberman’s bill, however, retains Israel’s current electoral system, in which MKs are chosen by, and therefore answerable to, party institutions rather than the voters. And to make doubly sure that parliament never challenges the president, it would also allow the president to dissolve the Knesset any time he considers it too dominated by the opposition to enable “proper governmental functioning.”

Yet Lieberman is hardly unique in his desire to concentrate power in one particular branch of government: Many “apolitical experts” are equally dismissive of the need for checks and balances.

Consider, for instance, the proposal outlined by Aharon Nathan – a member of Katsav’s commission and former senior government official who is also on the board of a citizen lobby group, Citizens Empowerment Center in Israel – in Monday’s Haaretz. It began promisingly, by proposing that our current electoral system be replaced by “total representation,” in which 90 of the 120 Knesset seats would be elected by constituencies. The remaining 30 seats would be distributed according to each party’s share of all the votes cast for unsuccessful candidates, thereby ensuring that no vote is “wasted.” This system, Nathan argued, would increase accountability by making most MKs directly answerable to constituencies.

Then, however, he proceeded to eviscerate this accountability: To promote governmental stability, he proposed, any coalition MK who votes against the government would be “deemed to have resigned,” unless the government authorized MKs to vote their conscience. Constituency MKs would be replaced by the winner of a snap by-election; occupants of the 30 party seats would be replaced by the next MK on their party’s list.

In other words, far from being accountable to their constituencies, MKs would become the virtual slaves of party leaders: Any MK who violated party discipline would instantly lose his job, even if his constituents backed him – which is far from unlikely, since most parties encompass a range of opinions. And since, in a parliamentary system, the government by definition commands a parliamentary majority, this means that the Knesset would have no power whatsoever to check the executive: MKs would have to either approve every government initiative or forfeit their seats to others who would be more obedient.

The draft constitution proposed by the Israel Democracy Institute, a leading think tank, offers yet another version of the same flaw: It would leave the current system of government, with its glaring absence of checks and balances, virtually intact. The electoral system, for instance, would remain the same, so MKs would still answer to party institutions rather than the voters. Cabinet members would still be able to double as MKs, so close to one-third of every Knesset would still consist of ministers and deputy ministers, which makes a mockery of the idea of parliamentary supervision over the executive: Effectively, members of the executive are “supervising” themselves.

Worst of all, the proposal not only retains but even strengthens the Supreme Court’s dominance of the system: It explicitly authorizes the court to overturn Knesset legislation or government decisions that violate constitutional rights, greatly expands the list of such rights, and maintains the existing judicial appointment system, whereby sitting justices essentially select their own successors, with elected politicians having only a minority vote in the process.

Even its one attempt to introduce a procedural safeguard is pathetic: On certain sensitive issues, the document states, the court is “not obliged” to give the constitution precedence over ordinary laws. However, neither is it forbidden – so even on these issues, the court could continue overruling the government at will based on its own expansive interpretations of constitutional rights. Thus an unelected Supreme Court, over whose composition our elected representatives have no real say, could continue overruling the two elected branches of government on virtually any issue, just as it does today.

Our current system of government is undeniably problematic, and in principle, changing it would be a good idea. But any reform must include a functional system of checks and balances among the three branches of government. Otherwise, the new system is liable to wind up being even worse than the current one.