Why the Left Rules Even When the Right is Elected

A friend gave me a copy of William L. Shirer's, "Rise and Fall of the Third Reich", to read and I've been amazed at how similar Israel's situation is to that of the Weimar Republic in its dying days. Of course, no person in the Israeli political theater has even 1/1000th the capacity for evil as those men who brought down the Weimar Republic and through their short sightedness brought the National Socialists to power. However, there are certain worrying parallels in the underlying political frameworks. Both cases show a similar political sickness, resulting in very similar consequence for the viability of the country.

The first is a fundamentally flawed political framework which poorly represents the people and creates an environment of divisiveness. We here in Israel have exactly what the founding fathers of the United States feared most, a democracy in the worst and most pure meaning of the word - something which Plato seems to have believed either equivalent to, or leading to, Anarchy. Our country has no constitution, only "Basic Laws" which can be passed on a whim by an absolute minority of Knesset members. In addition we vote for parties and not people, and the entire country is a single electoral district. Thus, we end up with people sitting in Knesset who do not represent the people. Instead, they represent the narrow sectoral interests of a small number of power players in the party's central committees.

"There were too many political parties... and they were too much at cross-purposes, too absorbed in looking after the special economic and social interests they represented to be able to bury their differences and form an enduring majority in the Reichstag that could back a stable government capable of coping with the major crisis which confronted the country at the beginning of the Thirties. Parliamentary government had become a matter of what the Germans called Kuhhandel --cattle trading-- with the parties bargaining for the special advantages for the groups which elected them, and the national interests be damned."

Change a few word and this could describe the Knesset.

And what is the result of such a situation in both cases? In the case of the Weimar Republic it led to Hindenburg invoking emergency regulations which gave the chancellor the power to govern the country by decree. The National Socialists had never won a majority in a free and democratic election, yet at this point it was only a matter of time before they were able to use back room political maneuvers to take the reins of power. In Germany's last semi-democratic election before the end of WWII the National Socialists took only 44% of the vote, even after imposing severe restrictions on freedom of press and the opposition's ability to campaign. Instead of convincing the people of their case in free and open public debate, they took advantage of a fundamentally flawed political framework in order to impose their world view on an unwilling majority, who only fell in line later when they felt incapable of opposing those who had illegally and deceitfully taken the reigns of power.

A similar situation has occurred here. In this past decade 65% of Israeli Jews have expressed support for the voluntary transfer of Arabs (paying Arabs to leave the country), 51% of Jewish teenagers felt that Arabs should not be allowed to vote in national elections (1), and the vast majority rejected Amram Mitzna's plan of unilateral disengagement. Instead they voted Ariel Sharon and the Likud into office on a vehemently anti-disengagement platform. It doesn't stop there. The vast majority of Israeli Jews didn't consider Judea, Samaria (a.k.a. West Bank) or Gaza to be occupied territory. At worst most considered it to be disputed territory in which the Jewish claim is at least as strong as the Arab one. Yet none of these positions is reflected in Israeli policy. Instead non-democratic entities such as the Israeli Supreme Court, unelectable individuals such as Shimon Peres and foreign agents such as Yossi Beilin are the ones who have stepped into the power vacuum created by an impotent Knesset and have managed to set the course of Israeli policy for the past 12 years of the Arab-Israeli war. Instead of convincing the people of their case in free and open public debate, they are taking advantage of a fundamentally flawed political framework in order to impose their world view on an unwilling majority, many of whom are falling in line only now when they feel incapable of opposing those who have illegally and deceitfully taken the reigns of power.

Only a fundamental change in the political system will save our country and this requires the delegitimization and then replacement of the current political system. However there are far too many vested interests to do this all at once and instead it must be done in a piecemeal fashion, and most importantly, in a completely legal manner from within the current system. The goal is a Constitutional Jewish Republic. What is such a state? It is a state which in its constitution lays out and balances two important principles. The first is the need for a state in which the Jewish people have exclusive control over issues of constitutional law, security and sovereignty. The second is the need to guarantee the basic civil liberties of all residents of the state, both Jewish and non-Jewish.

First, the weakest link must be attacked. This is the Israeli Supreme Court, which is already reviled by a large segment of the Israeli population. A Supreme Court is an institution which must be in the public consensus for the country to be stable and strong. In order to create a Supreme Court which is in the consensus there are a two fundamental changes which must take place.

First, the method of electing members to the Supreme Court must be changed. Currently the sitting members of the Supreme Court effectively choose who will fill vacancies on the bench without any oversight from the legislative branch or any democratic process which would allow for the voice of the people to be heard. (*2) Instead, a method more in line with the norm in Constitutional states must be adopted. One proposal is to have the President nominate individuals to fill vacancies on the bench and then have the nominees go through a process of review by the legislature. In order to become a member of the Supreme Court the nominee would have to attain the support of 61 members of Knesset. This would help put the Supreme Court more in the consensus; however by itself it would probably not be enough.

The second change must deal with the issue of judicial review. The current Supreme Court has taken for itself the power to strike down laws of the Knesset and actions of the government. However there is no explicit law which gives the Supreme Court this power. The Court simply assumes these powers based on what are known as "Basic Laws". These are laws which theoretically have the force of constitutional laws. However, they are not what most people would expect when thinking of a constitutional law. A "Basic Law" is a regular law which has the words, "Basic Law" prepended to its title. It requires no special majority. For instance, if 10 members of the Knesset where to vote in favor of such a law and 9 were to vote against, then the law would come into effect. (*3)  What is more is that once the law has been passed, it is extremely difficult to repeal. According to Israeli Supreme Court Chief Justice Aharon Barak, "An attempt to repeal an arrangement that is anchored in a Basic Law must be based upon permission expressly embedded in the Basic Law itself. There are few of these express arrangements." (*4)  This situation also distorts the democratic process and leads to a lack of confidence in the judicial system. Instead, the Supreme Court must be explicitly limited by Knesset legislation to exercising judicial review only on the basis of proper constitutional laws. An example of a proper constitutional law would be one which receives the confidence of an absolute majority of Knesset members or 2/3rds of the members of the Knesset, and which receives approval in a referendum by either 2/3rds of those voting or a 51% absolute majority of eligible voters, whichever is higher.

These changes to the constitutional and judicial framework would help promote stability by ensuring that the Basic Laws and the Supreme Court enjoy the trust and confidence of the vast majority of the Israeli population.

The second, more difficult change to the political system is changing the Knesset. The system of voting for parties in nation wide elections has certain positive aspects, but as we can see its drawbacks are bringing the country to the brink of destruction. One way to change this is to create a second house, similar to the American Senate, each of whose members is directly elected in district based elections. This second house would be required to review and approve all legislation passed in the Knesset. Since the members of this second house would be more representative of the national consensus, this "Senate" would act as a break on the fractiousness in the Knesset and help bring governance in line with broad national interests.

(1) Maariv December 19th, 2004
(2) Basic Law: The Judiciary: http://www.knesset.gov.il/laws/special/eng/basic8_eng.htm
(3) Basic Laws - Introduction:  http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
(4) The Role of the Supreme Court in a Democracy, Aharon Barak:  Israel Studies Volume 3, Number 2

The author may be reached for comment at editor@landofisrael.info.