More than 4,000 items of legislation are “on the table” in the Knesset as it convenes for the winter session. Here are the three most important ones
The Knesset plenum gathered last week for its first meeting of the winter session and of the Hebrew year. Since the elections two and a half years ago, Members of Knesset (MK) have submitted more than 4,000 laws of every type, a huge and even scandalous number. It seems that the turbulence within Israel has created a feeling amongst Knesset members that everything can be solved through legislation.
This is a mistake. Legislation is not always appropriate and not all issues that the media chooses to put on the front page should be an invitation for every MK to respond, with or without an accompanying bill. The current climate of governance in which the Supreme Court has placed itself above the Knesset and has vetoed laws at unprecedented rates is a good opportunity for MKs to internalize the weakness of legislation and to remove their foot from the pedal.
The cascade of bills may cause the outside observer to lose their sense of direction and to fail to distinguish between a bill that might bring about real change and a bill which is useless “parliamentary noise.”
What then are the three most important issues in front of the Knesset?
“Basic Law: The Nation State of the Jewish People Bill” has been bandied about in the Knesset for eight years. The bill has taken different forms, but the logic behind it has not changed; The State of Israel, as it is well known, is a Jewish and Democratic State. According to the tradition established by the Supreme Court, the democratic essence of the State is anchored in the 1992 “Basic Law: Human Dignity and Liberty and the Freedom to Work”. The essence of Israel as Jewish, on the other hand, is not based on a basic law. Supporters of the law think the time has come to do just that.
There are those who believe that basing the Jewishness of the state in a Basic Law will balance the extreme progressiveness of the Supreme Court and will force its justices to consider the Jewish essence of the state in their decisions.
Therefore, for example, on Thursday, the final decision on whether small markets can be open on Shabbat was handed down. As it stands, the court has decided to allow small market owners in Tel Aviv to open their shops, against the position of the Ministry of the Interior. If the Nationality Law was in effect, then the judges would be obligated to consider the decision’s effect on the character of Shabbat and would have to weigh it against the rights of the market owners.
This is likely all an illusion though. The Supreme Court has just recently created two weapons for itself with which to torpedo this kind of Knesset initiative.
The first comes from a decision that was issued by Justice Anat Baron and hinted to the fact that the Court is allowed to ignore aspects of a Basic Law if they do not like them, or, in their language, when “They stop legal processes.”
The second tool comes from a case last month that dealt with an article in a Basic Law that allows the government to make a biannual budget. The Court announced that if the article is applied, the Court will veto it, despite the fact that it is in a Basic Law.
In addition to the veto weapon and the weapon of disregarding, the Courts also have the old unconventional weapon called “creative interpretation.” Dear Knesset, what were you referring to when you said “Jewish State?” The Court tried to answer this question in 1980 after Begin’s government passed the Foundations of the Law Bill. This law established that if the Court encounters a lacuna, it “will decide based on the principles of freedom, justice, integrity and peace of the Jewish tradition.”
The intention of the Knesset was without a doubt to obligate the Court to look to Jewish law during times when modern Israeli law did not provide an answer. However, Justice Aharon Barak decided and established in a legal ruling that this law is only a recommendation.
With this freedom to interpret, it is very hard to rely on the change in the balance of powers that is embedded in the Nationality Law.
Despite all this, despite the fact that the Nationality Law does not have the power to change the balance of power with the courts, the MKs must pass this legislation. Not as a remedy to create a judicial revolution, but as what it is in reality, a law that defines the national essence of Israel as a Jewish state.
The problem of judicial imperialism is severe, but we can hope that it is temporary. Alternatively, the challenge of defining Israel as a Jewish state will affect many future generations. Today’s consensus regarding the Jewish character of Israel is a historical opportunity and a clear reason to secure it in legislation for all generations and for many years ahead. This is a clear opportunity for legislation that must be seized.
Freeing the Media
The many hours that the Knesset has dedicated in the last year to the Israeli Broadcasting Authority (IBA) have been a big waste. Instead of finally holding a public debate on the need for a public broadcast, instead of using the diminished stature of the Broadcast Authority in order to justify the closing or at least the weakening of public broadcasting, the Knesset spent its time with legal amendments dedicated to allowing the government to circumvent the privileged elites who control public broadcasting. In any case, it failed to do even that.
Even though the Supreme Court commandeered the debate when it vetoed the amendment meant to split the IBA and remove broadcasting news from its auspices, the disappointing result was already clear. All of the bad parts of the Broadcast Authority were transferred to the newly created Public Broadcasting Corporation, which enjoys a much stronger statutory standing. Even worse, just as with the Broadcast Authority, the Corporation is completely disconnected from the public that it is meant to represent and is trying to educate as opposed to mediating between the public and the politicians.
It seems that the chance has been missed to fix the problem of public broadcasting, but a significant adjustment can occur in another, more important arena of paid broadcasting. Similar to public broadcasting, the answer is not increasing government oversight, but exactly the opposite, removing the oversight and weakening the government bodies who work to regulate the media.
The tragedy of Israel Channel 20 is an exceptional example of the urgent need for such a process. The channel received a license to operate as a Tradition Channel. It would prefer though to be what the Israeli public wants and needs, a right wing current affairs channel. Its every attempt to get around the limitations of its license gets crushed by the strong hand of the regulator and when the regulator loosens its grip, the High Court forces it to tighten again.
The solution to this problem is already being prepared by MK Sharren Haskel, who is working on a bill that will allow Channel 20 and the other TV channels that hold a similar license to free themselves from regulatory restrictions in order to broadcast what they choose.
The “regular” commercial channels – Keshet, Reshet and Channel 10 – are expected to resent and oppose the bill. After all, the restrictions on Channel 20 and similar channels serve them well. And yet, they will also benefit. The regulatory burden on them is also exaggerated and the only fair solution is to ease regulation on everyone.
Freeing the commercial channels from the regulators’ limitations on the one hand and removing regulatory defenses on the other hand, will make the commercial channels much more reliant on the public. A channel that will broadcast unwanted content to the public – such as left-leaning news and prime time panels with speakers ranging from Balad to Yesh Atid – will pay for it literally. There will be no other regulator to protect it as it did with the collapsing Channel 10.
The challenge that stands before the Knesset in the realm of the media is to say goodbye and to let go. The incident of the Corporation proved that right wing government attempts to control the media are doomed. The way to achieve a media revolution in order that they better represent the opinions of the public is to free it from regulation.
The Prime Minister’s Investigation
Generally, ad hominem bills are not a good idea. However, it seems that a proposal to prevent investigations into sitting Prime Ministers is the exception. In our case, the political opposition to Prime Minister Netanyahu succeeded in harnessing the police and the prosecutors as a way to bring him down after said opposition lost the support of the public and has despaired from the possibility of winning at the polls.
Using the law as a political toy is a very bad sign for Israeli democracy, regardless of who is being investigated and what the investigators are trying to do.
Whoever argues that such a bill is a personal flak jacket for Netanyahu needs to learn a little about the history of investigations into Israeli elected officials. The State’s Attorney’s Office political use of law enforcement mechanisms has been with us since almost the very beginning of the state.
Thus, for example, when Attorney General Haim Cohen sought to investigate Deputy Welfare Minister Yisrael Rosenberg in 1954, he orchestrated a publicized police break in into the headquarters of Rosenberg’s Mizrachi party and made the move appear to be coordinated with the prime minister. Rosenberg was essentially silenced politically for half a year, after which he was found innocent.
Housing Minister Avraham Ofer ended his life in 1977 because of criminal persecution by then Attorney General Aharon Barak. The same Barak who created the “Buzaglo test,” or in the words of Barak, “The law is the same for Yadlin and Buzaglo,” meaning that there is no preference for elected officials when it comes to enforcing the law.
In this context though, the Buzaglo Test is problematic, as proven by most of the respectable democracies in the world. The need for elected officials to be protected from being pursued unjustly by law enforcement has led many to create a mechanism called “political jurisprudence.” Political figures enjoy immunity, a privilege, while they serve in office. Only other elected officials are authorized to negate this privilege. In most countries in the world, the process to remove immunity is characterized by an almost judicial process carried out through a political mechanism.
So, for example, when they want to impeach a president in the United States, he must stand trial in front of representatives from both houses of congress that have the power to negate the privileges of elected officials with regards to law enforcement. After a process to remove their immunity, the authorities are allowed to treat the politician as a citizen.
Until 2005, this was even the case in Israel. In the past, MKs had immunity that could only be removed by authorization of the Knesset. After the Immunity Law was amended, if a decision is made to indict an MK, their immunity is automatically removed unless the Knesset decides to prevent this.
The mechanism of political jurisprudence may seem strange to the average Israeli who is captivated by the perception that Knesset members and ministers are corrupt and foul. They think that the public needs protection from them through gatekeepers. However, this picture is somewhat shaken when one recalls the criminal persecution of justice ministers Yaakov Ne’eman and Haim Ramon for attempting to change the structure of the Justice Ministry against the interests of the elite that ruled it.
Today, the decision of whether to open an investigation against Knesset members is subject to the attorney general. The attorney general has de facto authority to dismiss elected officials. However, this authority derives from a dubious legal decision – not the law and certainly not a Basic Law.
To anchor the authority of the Attorney General to sabotage the performance of a prime minister in a Basic Law means to grant the attorney general enormous power. Over the past decade, Israeli citizens have suffered the onslaught of power-hungry legal advisers who have used the country as they pleased and used their extended powers, some of them illegal, to sabotage the implementation of democratic decisions.
Members of the Knesset must take into account the possibility that one day an ambitious and corrupt attorney general will be appointed, who will not hesitate to dismiss an innocent prime minister in order to change the government. We must not entrust such power to anyone. This is a slap in the face and a complete contradiction of our democratic principles and the rule of law.
The Knesset members must therefore amend the proposed law and implement the existing model that is found in many other countries. The Attorney General cannot be the one to decide whether to investigate a prime minister, but rather a special ad-hoc committee of Knesset members.
(Translated from Mida.org.il Hebrew)
The writer is the editor in chief of Mida.org.il
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