Only a Constitution will Ensure Good Governance in Israel

Following the passage of the "Governance Law," IDI researcher Attorney Amir Fuchs asserts that the only way for Israel to ensure good governance is by adopting a constitution.

Last month was a significant month for Knesset legislation. While I will not present a detailed critique of the laws that passed, here is one fact that has not received a great deal of public attention: The legislative package that was passed by the Knesset involved two Basic Laws. An amendment was added to Basic Law: The Government as part of the "governance laws" and a new Basic Law—Basic Law: Referendum—was passed. In taking these steps last week, the Knesset exercised its role as the "constitutional assembly" and its role as the "legislative branch" of government at the same time, and in effect amended Israel's (incomplete) "constitution."

If Israel had a real, formal constitution, however, it would not have been possible to change regular legislation and Basic Laws in tandem. Usually, when there is a real constitution—and this is in line with various proposals for a constitution for the State of Israel—the constitution cannot be amended with a majority of just 50%, or, in our case, 61 members of Knesset (which is the majority required by Basic Law: the Government, although most Basic Laws need only a simple majority). In most cases, a special majority, such as two thirds of the parliament, is required for amending a constitution. Moreover, such changes usually cannot be implemented quickly; rather, they require a long time and a greater number of readings than is the norm for ordinary legislation.

There is good reason for this. A constitution sets the "rules of the game." Obviously, those rules should not be changed at whim merely for political convenience. A constitution is designed to be stable and any change to it requires a special majority and a long ongoing process. In fact, a real constitution could serve as a true "Governance Law." The lack of a constitution in Israel has created an untenable political situation in which all coalition negotiations begin with a question as to whether and how Basic Laws will be changed. In other words, the most basic rules of the regime may be changed or cancelled by any incidental majority over a relatively short period of time, such that they become almost meaningless.

The best example of this is the provision that limits the number of ministers in a government to 18, which was added to Basic Law: the Government with much fanfare. It may be noted that a case can be made against the arguments that there is no value in having ministers without portfolio, since those ministers do not have a ministry to manage and are therefore free to dedicate time to meetings of committees such as the Ministerial Committee on Legislation, to challenge conceptual frameworks of ministerial forums such as the Forum of Eight, and to take on special assignments. (Minister Benny Begin did this in the previous government, and it would be hard to make the case that his term in government had a high cost.) However, even if we assume that restricting the total number of ministers is, in fact, useful and necessary, the inclusion of this limitation in Basic Law: The Government means that as soon as there is a political desire to change this restriction—whether during or following the formation of a new government—it will be changed at whim, just as it was by Ehud Barak's government.

In this respect, the status of Basic Law has almost no validity, since during the formation of a new coalition, it will always be possible to garner the majority of 61 MKs necessary in order to change the law. It can be argued that such action will have a public and moral cost. During the formation of a new government, however, politicians are willing to make concessions and to pay a public price; it is not reasonable to assume that a political party will forfeit being in the government merely because there is a need to amend a basic law. Furthermore, what sort of moral soundness is there to a restriction that is created by a current coalition to limit the size of future governments to 18, when this provision is not binding on the coalition itself? If the current government has 22 ministers, this is clearly not "practicing what one preaches."

This is also true regarding the issue of a referendum. The new Basic Law: Referendum is an entrenched law that can only be changed or abolished by a special majority of 61 members of Knesset. However, any future government that wishes to approve a peace agreement without holding a referendum will only need the very same majority in order to overturn the law.

Only a comprehensive constitution that includes a full declaration of human rights and detailed rules of the democratic game in Israel, and has substantial and procedural safeguards, can be a true "Governance Law." Once Israel has such a constitution, potential coalition partners will no longer be able to "extort" the government by making frequent demands to change the rules of the game and Israel will achieve governmental stability. Beyond this, a constitution will ease the power struggle between the branches of government and will ensure the protection of human rights in Israel. 

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Adv. Amir Fuchs is a researcher at the Israel Democracy Institute.

A version of this article was published in Hebrew in Haaretz on March 17, 2014 and English in the Times of Israel on April 10, 2014.