Netanyahu, Peres and Rivlin.
(photo credit: REUTERS)
With the circus surrounding the presidential election running rampant, with candidates vying for Knesset signatures and support or using game-play over abolishing or altering the presidency itself, the question arises: What should happen to the presidency?
Those in favor of direct election, which is popular in public polling, have argued that this would make the president more legitimate and eliminate the unseemly picture of wheeling and dealing in the Knesset.
However, many comparative political experts have said that direct elections would undermine the entire Israeli parliamentary system.
Unlike, for example, the US presidential system of government, Israel’s parliamentary system places far more emphasis on the legislative branch of government than on the executive branch having separate massive powers.
Experts supporting the system say that having the president directly elected would upset this balance, removing a form of parliamentary checks and balances on the president, and possibly turning him into a challenger to the prime minister – which could in turn breed a constitutional crisis.
Abolishing the presidency or removing his discretion to choose which party leader has first dibs on forming a coalition (by mandating the largest party get the first shot), is back in the headlines.
Completely abolishing the presidency has little support.
But mandating that the president empower the leader of the largest party to get the first shot at forming a coalition has been hotly debated since 2009 when Likud got to form a government though having fewer seats than Kadima.
Solon Solomon, a former Knesset legal adviser and currently a King’s College London Dickson Poon School of Law researcher, said that there are two sides to the issue.
On one hand, he said, most European systems that come from the “civil/continental” perspective similar to Israel’s system technically give the king-president the right to choose the candidate to whom he will give the mandate to form a government.
On the flip-side, he said, this presupposes a political culture that respects the public will and where unwritten custom is strong enough to dictate that the leader of the largest party be given the right to choose.
Solomon said that the less set Israeli political culture could raise concerns.
In 19th-century Greece, similar concerns led to the king exploiting his discretion and to appointing prime ministers of his own liking.
Solomon advocates incremental but influential change, saying, however, it would be in the less-discussed area of signing legislation.
The president signs each law, but until now, this signature has been a formality.
In countries like Greece, the president can send laws he deems unconstitutional back to the parliament, refusing to sign. And while Greece has its economic troubles, its political structure is sound, Solomon said.
Culturally, this signature-veto is rarely exercised and if parliament sends the law back to the president a second time, he is obligated to sign it.
In France, Belgium, Greece and Spain, preliminary judicial review already exists, in which the equivalent of a special group of High Court of Justice justices exercise constitutional review.
Such justices’ do not bind parliament, but they give it a strong hint of the likely fate of a law and can save the parliament from an embarrassing later legal defeat in the High Court including the ensuing administrative messes of rolling back an already-implemented law.
In Israel, the president, a preliminary review court or some combination of the two would need to show restraint and discretion so as not to hobble the Knesset.
Some might fear presidential abuse of power, but Solomon said society already trusts the president with exclusive presidential powers – such as granting pardons.
Those opposing activist courts might worry of inviting more activism, but Solomon said that worries of a small group of dominating judges can be avoided by appointing more justices – as is done in France, Belgium, Spain and Greece where there are as many as 63 justices to Israel’s 15.