Governing the Israeli people has always been difficult, but the proposed changes to the judicial system are proving to be especially challenging and divisive. The people are split down the middle, Israel’s economy and credit rating may or may not be affected, and the world is looking on. So what are the issues, and is there any precedent? Actually, there are many of each.
Israel gained independence from Britain in 1948. It inherited British colonial legal and tax concepts and has gradually amended them. But it has taken Israel 75 years to appreciate that Britain has an unwritten constitution, meaning a lot of checks and balances are less than clear-cut. By contrast, the US declared its independence from Britain in 1776, and by 1788, it had a written constitution. The US Constitution is continually being reinterpreted, but it arguably serves as a living framework for checks and balances.
The US Supreme Court exercises judicial review over the constitutionality of US laws, which has stirred issues in the US. The Israeli Supreme Court also exercises judicial review, despite the absence of a constitution in Israel (there are some basic laws). This results in questions as to who appoints the judges, can the Knesset overrule the courts and, if so, by what majority?
So what are Israel’s issues?
Israel’s main issues are arguably the following: (1) insufficient checks and balances in the view of some, hence the perceived need to fix the judicial system; (b) a proportional representation electoral system, which has resulted in weak coalition government and frequent general elections; (3) an economy driven by go-ahead business people who succeed in getting things done with or without government help; (4) a tax system interpreted by the Israel Tax Authority in tax circulars, forms, rulings and reportable positions, without waiting for the Knesset to pass tax amendments. We could go on.
Action plan to fix Israel’s issues: This author believes Israel should follow the example of the US and other countries that gained independence and calmly consider the following important changes:
A written constitution: There should be a written constitution drafted by top international lawyers. This would replace the present partial system of basic laws. The legislative, executive and judicial functions would be outlined in the constitution. The president is an experienced lawyer who can presumably recruit top international lawyers.
Two Knesset chambers: The present Knesset chamber would serve as a Senate. A second (lower) chamber would be created and have Knesset members representing geographical constituencies, elected on a first-past-the-post basis.
Mandatory public referendum system: This would serve as a further way of resolving deadlock on specific issues.
Religious issues: These would be decided in a tribunal system with a right of appeal to an upper tribunal. Tribunal members would be appointed for a maximum of two years by the president in consultation (only) with the two Knesset chambers.
Tax tribunal system: This would help avoid arbitrary or capricious acts by taxpayers or tax officials alike in a cheaper, faster and more efficient way than law courts. Many other countries have tax tribunals or courts, but not Israel. Tribunal members would include experienced members of the business community as well as government officials.
How it would work
The two Knesset chambers would review legislative proposals and exercise checks and balances over each other. Override powers would require a two-thirds majority in the lower chamber.
The Supreme Court would be empowered to judge what is in the constitution, rather than what ought to be in the constitution.
Constitutional changes would require a two-thirds majority of both Knesset chambers, similar to the US.
The people would vote in a referendum on any issue that remains deadlocked after a stated period, say nine months.
Potential advantages: Israel’s system of checks and balances should be strengthened in a transparent democratic manner. Israel’s credit rating should stay strong. Foreign investment in Israel should be encouraged if stability ensues. There would be an objective constitutional framework. It would also be possible to have a strong budgetary framework – two levels of approval before embarking on taxation and expenditure changes. And the feeling that tax officials wield too much power should evaporate once a tax tribunal system is in place.
Potential disadvantages: All this would take time to implement and opposition is likely from those giving up some of their power under the present system.
To sum up, Israel needs a written constitution, two Knesset chambers, a referendum system to resolve deadlocks and tribunals for religious and tax matters. Will we the Israeli people prevail?
leon@h2cat.comThe author is an Israeli citizen who has studied constitutional affairs.