In this paper, we argue that in a public health emergency, such as the one we are experiencing now, when unprecedented means are being employed in the fight against COVID-19, the Knesset’s smooth functioning is even more essential, especially with regard to the need for strict and effective oversight of the government.
Parliamentary oversight of the executive branch is a fundamental principle of every democratic regime. It is even more essential in a state of emergency, in light of the concentration of draconian power in the hands of the government, and the need to protect the rights of citizens. Were this not enough, the government that is managing the emergency situation is a caretaker government that has not won the confidence of the current Knesset (or the two that preceded it). Therefore, we are issuing a call that, even in the face of the difficulties engendered by the need to maintain the health of the public and of its elected representatives, we must find ways to establish the Knesset Arrangements Committee immediately, along with the Finance Committee, the Foreign Affairs and Defense Committee, and the House Committee, as well as a special committee to deal with the coronavirus crisis; and to convene the Knesset plenum as soon as possible, so that, among other matters, it can elect its Speaker.
We elaborate on these points below:
1. Parliamentary oversight of the executive branch is a fundamental principle of every democratic regime. In a parliamentary system such as Israel’s, this is one of the Knesset’s main functions. This oversight is carried out by utilizing the diverse parliamentary tools at its disposal, especially its committees (permanent committees, subcommittees, parliamentary inquiry committees, and so on). Although it is true that there are some changes that must be made in order to enhance the Knesset’s oversight of the governmenthttps://www.idi.org.il/media/10123/how-to-improve-the-knesset-as-a-legislative-and-oversight-body-key-recommendations.pdf, there is no question that the absence of such oversight is totally unacceptable and is incompatible with Israel’s democratic character. Clearly, the essential requirement for such oversight is an active and functioning Knesset, both of plenum and the committees.
2. It is especially important for the Knesset to exercise oversight of the government in this period, for two reasons: First, the fact that the current government is a caretaker government creates a complex constitutional situation in which the government remains in office by virtue of the principle of continuity, even though it has not won the confidence of the incumbent and sovereign Knesset. In some respects, then, the government’s legitimacy is reduced, as reflected in a number of restrictions that apply to caretaker governments, ranging from limitations on the decisions it may make, to the appointment of senior officials. Second, the government is taking major and even extreme measures —because of the worthy intention to slow down the spread of the coronavirus— measures which concentrate power in its hands and come at the price of infringements of individual rights. A prominent example is the emergency regulations that vest the General Security Service with extensive authority to determine the location of private citizens. What concerns us here is not whether this is justified in the current crisis, but rather-that the Government is wielding powers and employing measures that-- at the very least-- require the Knesset’s oversight, which, as stated, is sovereign. In this context, it is important to emphasize that despite the fact that it is of paramount importance to protect the public’s health, “the rule of law and constitutional principles are not suspended in times of crisis and states of emergency.”Yuval Shani, Oded Ron, and Nadiv Mordechai, “The Corona Virus: Preserving Constitutional Principles” (Hebrew), IDI website In a democratic regime, parliamentary oversight of the government is one of the most important means for preventing the concentration of excessive power in the hands of the executive branch and the infringement of individual rights, thus highlighting the importance of maintaining effective oversight, even in the present emergency.
3. An international comparison. In response to the current crisis, some democracies have suspended their parliaments. The most prominent example is Canada, where the House of Commons voted to adjourn for five weeks (in practice, the suspension is for only two weeks, since in addition-- a three-week recess had been scheduled prior to the emergency).In other democracies, parliaments have not been sent on vacation, but their activities have been disrupted. . In Romania, the parliament voted no-confidence in the government a month ago; but in light of the state of emergency, the vote was in effect-- nullified; the president empowered the outgoing prime minister with forming a new government, which obtained the support of all factions, including those that had voted against it a month earlier. The vote was held even though many members of parliament, including ministers in the incoming government, were in quarantine and could not participate.
On the other hand, other parliaments have continued to function as usual in recent weeks. This is the case in Denmark, Germany, and Austria, where the parliaments even passed legislation relevant to the state of emergency. The parliament chambers were disinfected before the members entered, and they sat some distance apart. In Germany and Denmark, the parliaments introduced minor changes in their voting procedures, allowing the process to last longer and to proceed by roll call. Note that many Danish parliamentarians were absent, because they had come in contact with a sick person or were ill themselves. In Great Britain, where the initial reaction to the virus was not as strict as in other European countries, Parliament has continued to convene as usual, though in the last few days, this has started to change. For example, the question time on March 18 took place with meager attendance of MPs. The sessions of the European Parliament scheduled for the next few months have been cancelled, and a system for conducting online sessions and voting is being developed.
We see then that many parliaments around the world are continuing to function even during the emergency, while adjusting their debate and voting procedures to comply with the restrictions imposed in order to safeguard public health. Some have recessed or surrendered some of their authority to oversee the executive branch; but this was done, at least to judge by the examples of Canada and Romania, with the legislatures’ full consent.
4. Accordingly, we believe that full or partial suspension of the Knesset’s functioning is not the right solution for the current emergency, and that today—it is all the more essential to ensure effective parliamentary oversight of the government. Unlike the situation in Canada and Romania, in Israel, there is no consensus on a Knesset shutdown. On the contrary, it seems that a majority of its members want it to operate effectively, as indicated by the request submitted by 61 members to convene the plenum in order to elect a new Speaker of the Knesset. Additional issues specific to Israel and which make effective oversight of the executive particularly important, were noted above: the fact that Israel currently has a caretaker government that does not enjoy the Knesset’s confidence and that the significant- and even extreme- measures that the government wishes to adopt to fight the coronavirus, are more radical than those taken in other countries.
5. Under the present circumstances, there seem to be two main methods for holding Knesset debates and voting. One is to convene sessions with the legislators and invited spectators physically present, with strict adherence to disinfecting the chamber and maintaining distance among individuals, as in Denmark, Germany, and Austria. It might also be possible to hold the sessions in a larger venue than the Knesset chamber (such as Binyenei Ha’umah). However, in light of the most recent instructions issued by the Government, to the effect that individuals should leave their homes only for specified and essential purposes; and since several Knesset members have already been exposed to confirmed COVID-19 patients, it seems doubtful that the House can meet, with its members physically present. An alternative to this format, is online debate and voting,utilizing appropriate software and technological solutions.
6. As explained below, there will probably be a need for special guidelines and approvals for holding online Knesset plenum and committee meetings. In light of the fact that in a democratic regime, parliamentary oversight of the Government is essential and all the more so—today, we believe that the relevant players, especially the Knesset Speaker and the Knesset legal advisor, should exercise their statutory authority to the fullest, so as to enable the legislature to do its job properly. With regard to the Speaker of the Knesset, such conduct is mandated by his duty to safeguard its dignity (according to Section 6(a) of the Knesset Rules of Procedures); by our constitutional tradition- which holds that the position should be one of nonpartisanship and political neutrality; and by his obligation, in his administrative capacity, to exercise his powers without a conflict of interest or irrelevant considerations.
7. With regard to Knesset plenum sessions, in principle it would seem that online sessions are in violation of Knesset Rules of Procedures, which state (Section 41(c)) that its members must speak from the rostrum or from some other place in the chamber. Electronic voting, too, must take place from the MKs assigned seat in the chamber (Section 36(a)(1) of the Rules of Procedures); but there is no explicit requirement of this sort in the case of roll call votes, which are held at the request of 20 MKs or the government. It would seem, then, that the Knesset Rules of Procedures must be amended in order to permit online sessions. We believe, however, that in the current circumstances, an exception should be made. The Knesset legal advisor should grant temporary approval, supported by the Knesset speaker, to permit online sessions for a limited period of time.
As for Knesset committees, Section 111(a) stipulates that with the consent of the Speaker and in special cases, committees may convene outside the Knesset building: “Knesset committee sessions will be held in the Knesset building; but a committee is entitled, with the advance approval of the Speaker of the Knesset and in special cases, to hold meetings outside the Knesset building.” Off-site committee meetings do indeed take place from time to time. In the absence of an explicit ban, we believe that this section should be interpreted as permitting online sessions, with the expectation of the Speaker’s approval.
In any case, considering the vital need for effective Knesset oversight of the government today, every effort should be made to permit the plenum- and especially the committees- to function. We have noted that there are countries, such as Denmark, in which the legislature continues to operate even when some members are absent for medical reasons. Similarly, we propose that should it be decided that legal and technical issues rule out online debates and voting by the plenum and committees, every effort should be made to facilitate their functioning, subject to medical restrictions—including permitting debates and votes to take place, with the physical presence of a minimal number of MKs.
8. Section 2A(a) of the Knesset Law stipulates that as soon as possible after its election, the Knesset will select, an Arrangements Committee chaired by an MK from the faction designated by the President to form a government. The Arrangements Committee must submit a proposal for the composition of the permanent committees, for the Knesset’s approval. In addition, it is empowered to set up temporary committees for matters of Finance and for Foreign Affairs and Defense (Section 2A(d)). This power is all the more justified in the present public health crisis; the ongoing and proper functioning of these two committees is essential for coping with the emergency, while ensuring parliamentary oversight of the relevant executive agencies. This is true many times over with regard to the Foreign Affairs and Defense Committee, and its subcommittee for Intelligence and Secret Services. The need to establish this committee is even more essential now, because the Government has authorized the General Security Service to exercise extensive powers infringing on individual rights, including geolocation of citizens’ cellphones and the tracking of their whereabouts.
9. The Arrangements Committee is authorized to submit a proposal for the composition of the permanent committees to the Knesset (Knesset Law, Section 2A(c)). It is also authorized to establish the House Committee, which can-- in turn-- recommend that the Knesset establish a special committee to deal with a specific issue and define the committee’s mandate and powers (Knesset Rules of Procedures, Section 108). As already noted, setting up the Arrangements Committee is crucial, so that it can submit its recommendation as to the House Committee. Once the House Committee has been formed, it should create- without delay- a special committee to deal with the coronavirus pandemic. The new committee would be authorized to conduct closer supervision of those agencies not related to security and defense that are dealing with the crisis—for example, the Health, Transport, Education, and Social Affairs ministries, and others. The special committee would be even more effective if granted broader powers, and if its members are briefed and advised by independent experts.See https://www.idi.org.il/media/10532/substantive-hearings-in-knesset-committees.pdf, https://www.idi.org.il/articles/30972; https://www.idi.org.il/ministerial-committee/30970.
10. Finally, we endorse the opinion issued by the Israel Democracy Institute researchers, indicating that the behavior of Knesset Speaker Yuli Edelstein, who has refused to set a date for the election of the new Speaker (even though 61 MKs have requested him to do so), “represents an extreme conflict of interest and the exercise of irrelevant considerations foils the purpose of the Basic Law: The Knesset, and severely undermines the fabric of parliamentary life.”Yuval Shany, Mordechai Kremnitzer, and Amir Fuchs, “The Authority of the Temporary Knesset Speaker to Prevent a Vote to Elect the Permanent Speaker,” opinion, the Israel Democracy Institute, Mar. 18, 2020 [Hebrew]. Accordingly, the current Knesset Speaker must immediately set a date for the election of the permanent Speaker. The Knesset’s power to elect its Speaker is enshrined in law, constitutes a legitimate democratic action, and is another facet of the Knesset’s authority to oversee the government. As stated, it is expected of the Knesset Speaker that he permit this, in view of his statutory position, the constitutional tradition in Israel, and his duty in his administrative capacity.