No members of the committee expressed an interest in abolishing the presidency

MK Roni Bar-On (Likud) objected to the frequency with which Presidents leave the city of Jerusalem, and pushed to amend the text to define both the place of residence and the place of official activity to be in Jerusalem. MK Eitan objected, explaining that this would be declared in the Chapter on Jerusalem regarding all central institutions of government; MK Bar-On insisted on making a special case, and the legal advisor was instructed to prepare one version of the draft including this recommendation.

The Committee agreed that the fact of the President’s election by the Knesset should be given its own article, and that the term of office should be moved to another article dealing with the details of the election.

The committee debated whether there should be a maximal age restriction, or whether the Members of Knesset may be trusted to choose the president wisely and without formal restraints. It was decided to leave the Article as it currently stands.

The majority of this article shall be relegated to ordinary law.

The committee debated whether this article should be consigned in its entirety to regular law, or whether the principle that members of Knesset nominate the president should be kept in the constitution. Committee members also debated whether the President should be restricted, in law or in the constitution, in his or her party membership and activity. It was agreed that Article 6(b) shall be removed to regular legislation.

The committee considered in great detail the various scenarios wherein no candidate for the Presidency receives a majority of the votes. There was no clear conclusion on whether the details of this law would remain as is or be changed to accept a plurality vote at some point later than the second vote in the case of a tie. Similarly, it was not decided whether this law would be relegated to ordinary legislation in its entirety, or whether its basic principles would be retained in the constitution, authorizing the law to fill in the detail.

The committee decided both to add the word “constitution” to the oath, and to change the wording of the “faithfully” clause to be consistent with the oath sworn by Ministers.

Section 1:

The committee discussed what happens when the President, whose signature on laws is generally considered ceremonial, refuses to sign a law. Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya, suggested that laws take effect even without the President’s signature, and recommended eliminating this article. The legal advisor to the president added that laws often arrive in the President’s office for his signature after they have already been published in the reshumot (the official Knesset Gazette). Dr. Sommer and Yehoshua Shofman, the Deputy Attorney General, agreed that no single signature actuates a law; it is the vote of the Knesset which puts the law into effect. [Professor Itzhak Galnoor, a political scientist from the Hebrew University, was not present at the meeting, but supports a ‘soft’ veto formula whereby the president should be given the power to postpone domestic legislation for six months and then ask the Knesset to vote on it again]. In the end Shofman and the Legal Advisor to the Constitutional Committee agreed to reduce Article 11(a)1 to, “[The President] shall sign every Constitutional Article, amendment, and law.”

Committee members discussed the changing role of the presidency, noting that while the President’s refusal to sign a law bears few legal implications, its symbolic strength is commensurate with the authority commanded by the President. When President Yitzhak Ben-Zvi refused, for instance, to sign the legislation repealing the death penalty some 50 years ago, his opinion was respected and the law was put into effect only upon his consent. The President, however, has no formal veto power. MK Eitan consented to leave the text as it stands, but warned that “Life is stronger [than legal formulae].”

Sections 4 & 5:

The committee discussed the steps necessary to ratify international agreements. Similar discussions took place (see 1, 2) under the heading of Basic Law: The Knesset, with the legal advisor’s staff undertaking to prepare three alternative formulae for the constitution. Some participants suggested requiring the President’s signature on all international accords; others were concerned this might be interpreted to give the President veto power. The Committee finally decided to write, “[The President] shall sign conventions with foreign states as have been ratified.”

Articles 11(b) & 11(c)

(b) The President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

(c) The President of the State shall carry out every other function and have every other power assigned to him by Law.

The committee debated what actual power the president has in distributing pardons. The High Court of Justice has ruled <link> that the President’s decisions in this regard are subject to its review; additionally, each pardon also requires the signature of the Minister of Justice. MK Eitan pointed out that the President’s considerations in granting a pardon are not legal ones, and therefore requested a text be drafted which would exempt the Presidential Pardon from the scope of judicial review. The court should not, he felt, be allowed to contest the content of the President’s decision in this regard. Other participants suggested balancing this change with an assurance of the Presidential right to revoke a pardon (should he discover it was given in error or under misinformation). The committee continued to debate the extent of the President’s powers and prerogative in this matter; the legal advisor to the committee was finally instructed to prepare two drafts. One will retain the status quo, the other will exempt the Presidential pardon from judicial review, and remove the requirement of the additional signature of the Minister of Justice – thus giving the President final say in the matter.

Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya adamantly opposed requiring a minister to countersign every document signed by the President. He saw this as an unnecessary relic of the British Monarchy, where the Prime Minister’s countersignature served to confirm that the King had, in fact, signed the document. In modern-day Israel, other participants agreed, so long as the constitution dictates that the President’s signature follows the recommendation of a minister – e.g., that his signature is largely symbolic – judicial review still applies to the documents signed, and a countersignature is superfluous. Sommer’s objections focused on the language of the article, which indicate that the minister’s signature is necessary in order to actuate the document. This shifts the responsibility for the document to a member of the executive branch, but it also allows the supreme court review of the acts.

Prof. Shimon Shetreet of the Hebrew University objected to the counter-signatures as well, calling them “Humiliating to the president.” He claimed that the minister who would countersign has parliamentary responsibility for the legislation by default anyway, and the signature is undesirable and purely symbolic. The committee debated this issue at great lengths. While the question has never reached the court, there is some ambiguity regarding the powers and responsibilities even in a minister’s signature. For instance, judges are nominated by a special committee of nine (see committee debates on judicial nominations). However, the nomination letter must be signed by the president (who all agree is purely symbolic here) and the Minister of Justice. Does this entail responsibilities and powers for the minister? Does he or she then exercise veto power? Or can the level of responsibility implied even by the minister’s signature be limited? While the committee leaned toward the last explanation, the answer is not legally clear. The committee reduced it to a question of judicial review: at what points can the courts intervene, and what is the act or signature under question? All agreed it was not the president’s.

The committee considered several potential changes. One would remove the phrase “official document,” substituting instead a narrower list of what documents require countersignatures. Another option was to change the phraseology of the requirement to indicate the countersignature is not a prerequisite for the act’s taking effect. The committee agreed they would find an appropriate and elegant formula which would protect the President’s dignity but retain government responsibility for state documents. In any case, the Committee legal advisors concluded, countersignatures would be retained for most documents and laws.

Dr. Hillel Sommer pointed out that the President’s immunity is broader than that granted by law and by the courts to Members of Knesset, but the committee leaned towards accepting that arrangement. The Legal Advisor to the Constitutional Committee suggested detailing in the constitution the type of immunities the President enjoys, but MK Eitan, Eyal Sandberg of the Ministry of Justice, MK Eliezer Cohen (Ha’Ichud Haleumi) and others preferred to retain a the basic provisions in the constitution, and to relegate as much detail as possible to regular law.

The committee decided to combine the content of Articles 13(a), 13(c), and 14 in the constitution; and to join Article 13(b) to 15, relegating both to regular law.

This provision will be retained in the constitution for all state position-holders, including those in the government and the Knesset.

Several participants, including the Legal Advisor to the President, requested clarification of those positions the President may not hold. The Legal Advisor to the president and MK Eitan suggested the president be allowed to continue party membership, but be prohibited from active participation in his or her party. The legal advisor to the constitutional committee concluded she would relegate the latter half of Article 17(a) and all of 17(b) to regular law.

Two options will be prepared, one maintaining the status quo, and the other limiting the requirement of government sanction only to official visits (as opposed to vacations, etc.)

Some participants considered the president’s right to resign obvious, and claimed it needed no explicit mention in the constitution. The final recommendation, however, was to include an article on the end of the President’s term, which would detail all the possible reasons for ending the term, (e.g. the seven years are up, the President becomes ill or dies, the President is dismissed by the Knesset, resigns, etc.), including resignation. Once the President declares his or her resignation, he or she will be unable to retract it.

MK Eitan thought this should include conduct that occurred before the President took office; Dr. Sommer suggested that if the committee wishes to adopt that interpretation, it should clarify it in the text.

(b) The Knesset shall not remove the President of the State from office, save following a complaint brought before the House Committee by at least twenty members of the Knesset and upon the proposal of the House Committee passed by a three-quarters majority of the members of the Committee. A resolution by the Knesset to remove the President from office shall require a three-quarters majority of the Members of the Knesset.

Much of this detail will be relegated to regular law. The constitution will retain the mention of the ¾ majority required in the Knesset, and possibly note that the Knesset shall take up the issue upon recommendation of a committee.

(c) The House Committee shall not propose the removal of the President of the State from office before he has been given an opportunity to refute the complaint in accordance with procedure prescribed by the Committee with the approval of the Knesset, and the Knesset shall not resolve to remove the President of the State from office before he has been given an opportunity to be heard in accordance with procedure prescribed by the House Committee with the approval of the Knesset.

MK Ravitz expressed concern that the President could effectively be prosecuted without a regular trial. Sandberg reassured him that this was accepted practice in many countries, and MK Eitan expressed his confidence in the process and in the judgment of the 80 MKs required to remove him from office. Ravitz accepted this explanation, including the president’s right to defend himself before the House Committee and his general immunity from prosecution, the most extensive in the state.

(d) The President of the State may be represented before the House Committee and before the Knesset by an authorised representative. A Member of the Knesset shall not act as the representative of the President. The House Committee and the Knesset may summon the President of the State to be present at proceedings under this section.

(e) Proceedings of the Knesset under this section shall be taken at a meeting, or successive meetings, assigned solely for that purpose. The proceedings shall begin not later than twenty days after the resolution of the House Committee. The time of their beginning shall be notified by the Speaker of the Knesset to all the Members of the Knesset, in writing, at least ten days in advance. If the beginning of the proceedings does not fall in one of the session terms of the Knesset, the Speaker of the Knesset shall convene the Knesset for the proceedings.

Sections (d) and (e) will be moved to ordinary legislation.

This article will be slightly reworded to combine sections (b) and (c).

The committee objected to suspending the President from his office every time he leaves the country. Most trips the president takes out of the country are official and short, and as such he should remain in his capacity. Legal advisor to the Committee Sigal Kogot suggested this be amended to match the solution found for the parallel problem in the Basic Law: The Government which provides that another person shall handle certain specific responsibilities while the Prime Minister or Minister are out of the country.

Committee members were particularly concerned about the two most substantive responsibilities of the President of the State – pardoning prisoners and establishing or dissolving the government and Knesset. As the law currently stands, the Speaker of the Knesset – an elected, partisan official – takes on all of the President’s responsibilities. The longer the president is out of office for any reason, the more problematic this becomes. Participants almost unanimously objected to allowing the Speaker of the Knesset – an MK from the majority party – to dissolve the Knesset or create a new government.

Sigal Kogot boiled the issue down to three questions we must answer: How long do we endure with a Deputy President? And who should that be? And what should his or her responsibilities be?

Sandberg brought up the possibility that the deputy should be some non-political figure, such as the Chief Justice of the Supreme Court, a retired Justice, or a retired President. MK Eitan preferred the Chief Justice of the Court (an apolitical institution) to the Speaker of the Knesset, while Sandberg preferred a retired official. Ravitz saw certain advantages to using the sitting Chief Justice, but preferred a retired President.

Kogot stressed the importance of keeping these details in the constitution, though she acknowledged that the interim period before the Knesset permanently replaces the President should perhaps be shortened to 100 days. She promised to offer several options for the Deputy who is authorized to dissolve the Knesset and other similar authorities.

This article will be relegated to ordinary legislation.

A general stability clause will cover the entire constitution.

This article will be moved to ordinary legislation.

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