Legislative impotence

I’m also outraged at the ministers’ behavior. But I’m far more outraged at Mofaz and his fellow Knesset members, who seem to feel that their job as MKs begins and ends with issuing press statements. The Knesset, not the cabinet, is Israel’s highest sovereign authority, and if it sees a problem, it has the power to enact legislation to solve it.Instead, here’s what various MKs have done to date: After the first incident, Mofaz asked Knesset Speaker Reuven Rivlin to discuss the issue with Prime Minister Binyamin Netanyahu and Defense Minister Ehud Barak, and Rivlin did so. After the second incident, Mofaz sent a letter of complaint to Netanyahu. And after both incidents, Mofaz and several other MKs complained to the media.

Granted, it’s reasonable to try to resolve the dispute amicably first, but there has to be a Plan B in case the ministers continue their noncompliance. In this case, no Plan B has been announced even though it seems clear one is needed: A mere week after Mofaz’s first complaint, Netanyahu and Barak thumbed their noses at him by once again barring officials from testifying.

And it’s not as if the Knesset could ever lack tools to force compliance: If existing law doesn’t provide any, it can always pass legislation to create them. In this case, for instance, it could pass a law imposing sanctions on ministers who bar subordinates from testifying to Knesset committees. But neither Mofaz nor any other MK has suggested any such thing. It seems they would rather just keep complaining about the situation.

Nor is this the only example. Just last month, for instance, Rivlin was upset over media reports that Barak planned to let Egypt substantially increase its troop presence in Sinai, in violation of the Israeli-Egyptian peace agreement. So he announced he would consult the Knesset legal advisor about whether Barak was authorized to amend the treaty in this fashion without the Knesset’s consent.

Again, this might be a reasonable first step, but there was no Plan B. Rivlin did not, for instance, vow to submit legislation requiring the government to obtain Knesset approval for any substantive change in a peace treaty, even though the stakes couldn’t be higher: Barak’s proposal would gut the peace treaty’s main achievement, the demilitarization of Sinai. And in this case, a Plan B was indisputably needed, because in contrast to Mofaz’s complaint – where existing legislation already requires the government to provide the requested information, so the problem is merely one of enforcing compliance – Rivlin’s complaint stems from a glaring legal lacuna.

Existing law doesn’t even require Knesset approval of most peace treaties when they are first signed, much less of subsequent amendments. And it’s hard to see how any legal advisor could extract a requirement for Knesset approval out of legislation that doesn’t exist. The sole exception to this legislative vacuum, enacted last year, applies only to treaties that cede sovereign Israeli territory. But since Israel never formally annexed Sinai, this law wouldn’t have applied to the Egyptian-Israeli treaty even had it existed at the time.

Then there’s the perennial Knesset complaint about judicial intervention in issues that are properly the purview of the executive and legislative branches. As I’ve written elsewhere (here, for instance), I consider these complaints eminently justified. Yet this, too, is something the Knesset could change by passing legislation – either comprehensive legislation regulating the court’s powers, or narrower legislation enabling it to override the court’s decisions under certain circumstances, which it could then use it to reinstate specific laws or policies overturned by the court if it deemed these rulings an unwarranted usurpation of the government’s right to set policy. But it seems our MKs would just rather keep complaining about judicial overreach.

In theory, the Knesset is the strongest of Israel’s three branches of government: It is considered the sovereign authority, and is thus superior to the executive and judicial branches. In practice, however, the Knesset is the weakest of the three: Whereas neither the executive nor the judiciary is shy about exercising power, the Knesset generally defers to the other two. It may complain, but it rarely uses its legislative authority to constrain either the cabinet or Supreme Court. The result is that many of Israel’s most crucial decisions are made by a mere handful of people, of whom some (the cabinet) are only indirectly elected and others (Supreme Court justices) aren’t elected at all, with no input from the country’s most representative body: the legislature.

And that’s precisely why polls have generally found the public’s faith in the Knesset to be lower than its faith in either the prime minister or the Supreme Court: The latter two, however little one may like what they do, at least do something, but MKs seem to do little other than talk. And through this passivity, they betray the public’s trust, leaving the people they purport to represent powerless before the other branches of government.

Since taking office, Rivlin has talked a lot about the need to restore public faith in the Knesset. But that will never happen until MKs stop whining about the other two branches of government and instead start using the enormous power their status as legislators gives them. This isn’t rocket science; it’s basic human nature: Nobody in the history of the universe ever respected a whiner.

The writer is a journalist and commentator.