Introduction
On August 4, 2003, the committee first met to discuss the Executive Branch of government; the first meeting was attended by three former Prime Ministers of Israel: Shimon Peres (Labour); Benjamin Netanyahu (Likud), currently the Minister of Finance; and Ehud Barak. Committee chair MK Michael Eitan (Likud) opened the meeting by welcoming the guests, and summarizing the history of the efforts to draft a constitution. Knesset Speaker Reuven Rivlin (Likud) welcomed the participants as well, noting the strength the Knesset demonstrated in reversing its decision to institute direct elections for the prime minister, and praising the efforts and seriousness so many MKs brought to the constitutional issues. MK Eliezer Cohen (Ichud Haleumi) pointed out that this meeting marked the first time the Knesset had reexamined the foundations of governance to ensure the system which evolved from 1948 – a parliamentary coalition system – would be reformulated in a constitution to provide the best system for the citizens of Israel. Several questions were addressed to the former Prime Ministers: Current problems with the executive branch:
1. Type of rule: presidential or parliamentary democracy?
Former Prime Minister MK Shimon Peres (Labor) differentiated between democratic government and democratic culture. I am not sure, he said, that we have really resolved whether our political culture is more parliamentary or presidential. For historical reasons, Israel’s political system is based on a large number of powerful political parties (at any time, 10-15 are represented in Knesset), and the government constantly relies for its existence and its major decisions on a coalition of many parties in which the marginal interests usually hold the rest hostage. In Peres’s view, the ideal objective is to reach a parliamentary system with two or three parties. A presidential system would create a confrontational Knesset with a paralyzed premier; whereas a many-party system drains the Prime Minister’s time in coalitional negotiations. At the same time, he said, the Executive had taken much of the power away from the Knesset and municipal authorities, neither of which puts up a substantive fight on things like the budget. The United States has politically powerful cities – New York, Los Angeles, and San Francisco, for example – and a strong business world; in Israel, the business world is dependent on the government. Former Prime Minister and current Finance Minister Benjamin Netanyahu (Likud) suggested we change these things; Peres indicated he did not believe it would be so easy. The decision between a parliamentary and a presidential system is just one of methods; the goal state is one in which Israel has a real government and a real opposition, not constantly-shifting coalitions around different topics. Peres recommended some change in the elections system, but conceded that the shift to direct elections of the Prime Minister had been disastrous. Former Prime Minister Ehud Barak took up the issue of the decline of public faith in the institutions of government and particularly in the Knesset. This dissatisfaction is, Barak opined, related to the frequent and early fall of governments in recent years; the failure of the legislature to grapple with the most important issues facing Israel; and most regrettably, the low regard which the young generation holds for the Knesset and government. Government no longer attracts Israel’s best and brightest youth. The level of corruption and dishonesty we tolerate among public officials is unusually high, and we are an unusual, still unfinished national experiment. We suffer from real schisms between religious and secular, Arab and Jewish, immigrants and those who have lived here for a long time. When we adopted a direct election system, we were emulating the American presidential system, but without the checks and balances of a constitution; we mimicked the British system, but without the sense of tradition and fair play that lends the stability to the British government, allowing it to respond swiftly and appropriately to events both internal and external. Now, Barak said, we have returned from the new bad system to the old bad system, albeit with the positive development of a new “constructive vote of no confidence” (though this probably will require an adjustment of the minimum vote threshold and other significant amendments to be effective). (The Constitutional Committee passed a bill through the Knesset in May of 2004 raising the minimum vote threshold from 1.5% of the vote to 2% of the vote in order for a party to enter the Knesset). At the root of our democracy’s problems is the inherent, structural conflict between the long-term good of the public and the short-term good of interest groups within the parliament. We all know what is in the long-term best interest of the people in lots of major issues – on peace and security, on the economy, on social issues and on religion and state – but a cocktail of temporarily powerful interest groups with opposing interests sways us from that course. What makes the situation uniquely bad in Israel, however, is that these short-sighted special interest groups have the power to topple the government – this is the most important evil to stop. How a Prime Minister deals with the power of special interest groups Prime Ministers have typically reacted to this weakness in one of two ways:
Ignore: some prime ministers have decided to do nothing about the special interest groups. In practice, this means they avoid dealing with any central issues, because special interest groups are bound to have a stake in central issues, and making difficult decisions will bring about the fall of the government. This path is pragmatic for a premier who wishes to stay in office, but the question of whether it is good for the state remains open. This group has in recent years included Netanyahu, Shamir, and Sharon.
Fight: other prime ministers, recently including the late Yizhak Rabin and myself [Barak], view the same situation in a different light. We feel the purpose of occupying the seat of the prime minister is to effect change for the better, even if it endangers our jobs.
Presidential System, District Elections Barak recommended strengthening the ability of the executive to act, and isolating the prime minister from the public. He recommended a layer in between to ensure that local, small problems do not come directly to the Knesset and Prime Minister’s office. Barak therefore supported a presidential system, whereby the Prime Minister serves full terms, and can be removed only by the people in regular elections. Barak additionally proposed district elections; he suggested that 80 MKs be elected by district from 20 districts, addressing problems of under-representation of women, Arabs, and others. The remaining third of the 120 seats would be filled by MKs elected under the current system. Former Prime Minister and current Finance Minister Benjamin Netanyahu (Likud) expressed his strong support for a presidential system, but explained that many more checks and balances are necessary as prerequisite. He stressed the differences between Israel’s historic, cultural, and political situation and those of the United States at its inception. Israel’s lack of homogeneity in its political philosophy, and its nationalism with religious overtones are a few of the elements that make it far more difficult to make dramatic changes like instituting a presidential system. Israel’s government performs well in defense and foreign affairs, Netanyahu said; it fails within the borders of the state. He saw the central problem facing Israel’s governing efficacy not as one of structure, but as a conceptual problem. The private sector conception is simply more highly motivated to succeed, he said, than the public sector. The government is overburdened with authority and responsibility, while the prime minister finds he lacks the power to act on his policies because of sectarian and party interests within his cabinet. A presidential system could address some of these problems, he said, but he recommended proceeding carefully.
2. Does the High Court of Justice interfere with the effectiveness of the Executive?
Former Prime Minister MK Shimon Peres believed the problem was not an excess of court cases, but rather an excess of laws. There must be a culture of respect for the law rather than additional laws passed for the greater glory of individual legislators. Peres upheld the importance of the independence of the courts from all external pressures, including Rabbis and members of Knesset, calling it one of the best-functioning institutions in Israeli society. Former Prime Minister and current Finance Minister Benjamin Netanyahu and Former Prime Minister Ehud Barak agreed with Peres’s observation that there are too many laws, and Barak said it was a problem affecting many western countries. However, Barak called Israel’s Supreme Court an anchor of stability, wisdom, and direction in Israeli society that must be protected at all costs. His fear was of the pressures exerted on the court by a government which may see itself as above the law. Netanyahu spoke of the need to safeguard the separation between the executive and the other branches of government, noting with dismay that nearly one-fourth of sitting MKs have served in the executive.
3. Should the responsibilities of the Attorney General be split?
Committee Chairman MK Michael Eitan asked the former Prime Ministers whether they believed the office of the Attorney-General should be split in two, with one legal counsel to the Prime Minister and Government, and the other to be a general prosecutor, responsible for the legal aspects of the civil service, who will have no connection to the Government. Former Prime Minister MK Shimon Peres and Former Prime Minister and current Finance Minister Benjamin Netanyahu both opposed such an arrangement right away, unsure whether the benefits would outweigh the costs. They supported the recommendations of the Shamgar commission on the subject, which called to maintain the status quo, preferring to work on a culture of tradition and respect for existing institutions rather than trying too frequently to alter them. Former Prime Minister Ehud Barak said his intuitive sense would be to split the office, but he deferred to the thorough study and recommendations of the Shamgar commission to leave it as a single office.
4. Should the Prime Minister and Ministers be given greater freedom to appoint senior staff?
Committee Chair MK Eitan explained that according to the status quo, the Prime Minister and other ministers are allowed to appoint a limited number of senior staff to their offices; the majority of the staff is appointed through public tenders. While ministers often manage somehow to get many of the people they want into senior executive positions, they are unable to fire their predecessors’ appointments. Chairman Eitan asked whether ministers should be given a greater number of political or personal appointments, potentially increasing the minister’s ability to act on policies, at the expense of lowering the ceiling for professional civil servants in ministries, filling the highest offices with political appointments. [In March of 2005, the Ministerial Committee on Legislation voted to back a bill brought by MK Gideon Sa’ar doing precisely this – opening some of the top positions in the civil service and ministries to political appointments, over the opposition of Attorney-General Menachem Mazuz. (See proposed law, article in Ha’aretz)]. Former Prime Minister MK Shimon Peres said it depended on the quality of the government. The Prime Minister does not, he said, suffer from an inability to appoint senior staff; his authority is well-protected, Peres said, and giving the Prime Minister greater leeway in this would over-politicize the government. Ministers, he said, should be given 3-4 political appointments, and no more. The civil service should be professional and strong, to counteract political parties’ habit of protecting their partisan interests in whatever ministries they hold, in part through use of appointments. Former Prime Minister and current Finance Minister MK Benjamin Netanyahu agreed the government was top-heavy, but said that ministers must still be given greater ability to act. They represent the people, and the people may remove them from office every four years or less – but so long as they hold office, they must be given senior staff who reflect and will execute their policies. When new ministers come into office, he continued, former political appointees should resign. To balance this, the Knesset must oversee and legislate the process to ensure jobs are not handed out as favors to parties’ central committee members. Former Prime Minister Ehud Barak said the question depends on the type of system of government. In a presidential system, the president is directly elected to carry out certain policies, and his ministers must belong to him and reflect his ideas; if an American cabinet member refuses to carry out presidential policy, he or she will simply be fired. We cannot adopt individual pieces of a presidential system, he said. If we adopt a full presidential system, appointments will belong to the President; if not, the appointments may belong to the political parties.
5. Should there be a greater separation between Military Officers and the Political arena? Should there be a cooling-off period?
Former Prime Minister Ehud Barak answered in the affirmative. There must be a much longer cooling-off period. The current situation is detrimental. Former Prime Minister and current Finance Minister MK Benjamin Netanyahu sympathized with the generals who, towards the end of their military careers, eye the political arena. However, he agreed strongly with Barak, saying there should be a cooling-off period of at least one Knesset term in which former IDF officers are barred from holding political office. In order to ensure this view is not viewed publicly as hypocritical, personal, or political, he suggested the stipulation take effect two or three terms from now. Former Prime Minister MK Shimon Peres agreed with his colleagues. Former military officers have a great deal to offer to politics, he said, but advised that we take advantage of them only after a reasonable cooling-off period. There is an unhealthy tendency of the public to admire and advance its military leaders during times of tension, and to value them disproportionately. Moreover, he warned, Generals are in a difficult position, having served for a long time in a highly undemocratic institution whose purpose is to defend democracy. They must be given some time to readjust, he said. Peres recommended at least a year for cooling-off, and possibly as long as Netanyahu suggests.
6. Should the Arab minority in Israel be given not only individual, civil rights, but collective rights? i.e. Language, culture, or special education?
Former Prime Minister MK Shimon Peres started with a description of the ways in which Israel discriminates against its Arab citizens at many levels: Their schools or poorer, the quality of their education is lower, their municipal budgets are not proportional to those of Jewish towns – all these things harm the Arabs as citizens. We made even greater mistakes in the past – such as the military government and the unjustified seizure of lands – which, thankfully, we no longer make. Democracy, he suggested, is based on two principles: The right of every citizen to be equal; and the equal right to every citizen to be different. Israeli Arab rights are in a sense not the Arab minority’s problem, Peres argued, but the Jewish majority’s. We must not discriminate, we must not look the other way. We must insist, both as Jews and as democrats, on true equality – our formal, declarative form of equality harms both Jews and Arabs. It is time, Peres said, we had an Arab justice on the Supreme Court, and an Arab minister in the government. Former Prime Minister and current Finance Minister MK Benjamin Netanyahu pointed to the natural tension between Arab rights to equality and the Jewish goal of securing Israel as a Zionist state with a clear Jewish majority. We use the Supreme Court and the Knesset to guarantee full individual equality, but we give Jews preferential collective treatment with such tools as the Law of Return. We must live with this duality. Israel acts to maintain the Jewish majority, and it should continue to do so. We do offer Jews collective privileges that we do not offer Arabs, but we must do this honestly. Israel’s problems of discrimination are real and must be addressed. Netanyahu pointed to steps that had been taken and needed to be continued to improve Druze and Bedouin schools, and to extend police coverage into under-policed Arab towns currently. Netanyahu concluded that Israel needs equal rights for all, but to pursue a collective goal of Israel as the nation-state of the Jewish people. He vehemently opposed legislation designed to ensure specific collective rights for any particular minority, calling it the beginning of disintegration – you would soon see autonomy in the Galilee and the Negev, he posited. The responsibility for protecting collective minority needs must lie with the executive. Former Prime Minister Ehud Barak said that Israel loses its meaning and its raison d’etre if its constitution fails to protect any one of its three founding principles: Judaism, Democracy, or Zionism. Israel must protect its minorities’ individual and collective rights; but the collective politic is Jewish, Democratic, and Zionist. Liberal, democratic, 21st-century Israel should not allow individual rights to overwhelm its collective society entirely. In that sense, the Katzir (Ka’adan, HC 6698/95) case was highly problematic.
Israel is mandated, by its Jewish Halachik and legal standards, to protect the non-Jews in its land. But the phrase “State of all its citizens” has long since turned into a political code-word for a bi-national state. Israel is first of all the Jewish nation-state, and was created to serve as the Jewish National homeland. Barak recognized the importance and urgency of full individual equality and of the freedom of an Arab community from Jewish standards, but stopped short of offering collective rights. He considered the Jewish character of the state of Israel of prime importance and something that must be fiercely protected.
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