This has been a thought-provoking week for Israeli democracy.
Last Thursday, JPost.com was the first non-Arabic news site to report, based on information from Palestinian Media Watch, that lawmakers from Balad, one of the parties making up the Joint (Arab) List, met with families of 10 terrorists – whose bodies are being held by the Israel Police because the families refuse to hold modest funerals to avoid incitement to violence – and stood in a moment of silence in memory of the “shaheeds” (martyrs in Arabic), while the party’s Facebook page referred to a particular terrorist, who killed three Israelis, as a shaheed.
This, like many other controversies involving Balad’s MKs Haneen Zoabi, Basel Ghattas and Jamal Zahalka, led to Knesset members and commentators wondering about the limits of democracy, particularly of freedom of expression.
Democracy “must protect itself and defend itself,” Prime Minister Benjamin Netanyahu said at a Likud faction meeting on Monday.
“We have to keep limits and basic rules of behavior so that democracy will not turn into a suicide pact,” Netanyahu stated, referring to a phrase written in a 1949 legal dissent by US Supreme Court justice Robert Jackson, who had served as the chief US prosecutor at the Nuremberg Trials, in which he argued that inciting a riot does not fall under freedom of speech.
The prime minister suggested that the law allowing a president of the state or a Knesset speaker to be impeached for inappropriate behavior by a vote of at least 90 MKs apply to legislators. Bayit Yehudi took issue with “inappropriate behavior” being a broad definition and sought to narrow it to the grounds that Basic Law: The Knesset lists for banning parties from running, grounds that include support for or incitement to terrorism or armed conflict against Israel and rejecting Israel as a Jewish and democratic state. No progress has been made on that front, as a Knesset Law, Constitution and Justice Committee meeting on the topic deteriorated into chaotic shouting.
Netanyahu’s proposal as to how democracy should protect itself raised questions of its own. The president and Knesset speaker are elected by the Knesset and therefore can be removed by the Knesset. Should the Knesset be able to impeach its members, who are elected by the people? Then there’s the overarching question, one that comes up far too often: Why do MKs keep getting in trouble? While there’s a world of difference between apparent sympathy with terrorists’ families and the name-calling tantrum by MK Oren Hazan (Likud) and Ayelet Nahmias-Verbin (Zionist Union) in the Knesset parking lot last month, they both fit into a pattern of cringe-worthy behavior by lawmakers that leads the public to disregard and disdain the institution that is supposed to represent them.
Ahead of the Israel Democracy Institute’s International Advisory Council, IDI president Yohanan Plesner gave some answers to these questions, based on the think tank’s research.
“What the Arab MKs did is outrageous. It makes my blood boil. I totally understand the expectation in the broader public that something should be done in response to the situation,” Plesner said in the Knesset Thursday.
Plesner lamented the negative impact of the Balad MKs’ behavior on coexistence in Israel: “Their actions, especially standing in memory of the shaheeds, who are murderers, is the exact opposite of what has to be done for there to be civil equality and common citizenship, because it damages the trust between different sectors in Israeli society.”
However, the IDI president took issue with the suggested legislative response.
Plesner pointed to the Ethics Committee and criminal courts as the proper response, as well as the Central Elections Committee, which can vote to ban lists or individuals from running for the Knesset if they violate any of the aforementioned conditions.
However, such a decision requires authorization from the Supreme Court, which has overturned all such bans in recent years.
“Anyone who wants to make a change should take a serious look at the existing mechanism and see if there are things that need to be fixed there,” he said.
Passing a law to impeach MKs would mean altering Basic Law: The Knesset. Basic Laws are the building blocks of an Israeli constitution, so changing one is akin to a constitutional amendment, Plesner explained.
“This should not be done in response to a specific case, nor should it be undertaken hastily, without deeply examining the ramifications and looking at the whole system and all its aspects,” he stated.
In addition, Plesner questioned the wisdom of having legislators judge their colleagues.
“They don’t have the tools to hear testimony and decide which version of events is right. It’s unfair to ask MKs to be able to do that, and it will reduce the public’s trust in the Knesset even more,” he said.
Plesner also expressed concern that expelling MKs from the Knesset could undermine the legitimacy of Israeli democracy in Israel – “If a large part of the public doesn’t have who to vote for and is not represented, it will hurt our democracy” – and abroad.
When confronted with the fact that the UK has a law allowing the expulsion of members of the House of Commons, and the US Constitution states that a member of Congress can be expelled for “disorderly behavior” – a law that was put to use as recently as 2002 against congressman James Traficant of Ohio, who was convicted of bribery, racketeering and tax evasion – Plesner pointed out that any MK who commits a crime with moral turpitude is automatically removed from office.
“It’s much more problematic when the law has potential to harm political representation and freedom of expression, the core of democracy,” he stated.
ZOOMING OUT to the entire Knesset rather than focusing on just a specific, controversial group of MKs, it is clear legislators in general have a dysfunctional relationship with the people who voted them into office.
IDI polls a representative sample of 1,000 Israeli adults about their trust in government institutions every year. Its 2015 Israeli Democracy Index found that over half (54.4 percent) of Israelis found MKs do not work hard or do their job well and only about a third trust the Knesset (35.4%) and government (36.2%). Trust in political parties is even lower, at 19.1%. (The poll’s margin of error is 3.2 percentage points.) In a November 2015 poll, the IDI found that less than one in every 100 Israelis (0.9%) believe MKs behave in a way that can serve as an example to the public. Over three-fourths (77%) think there has been a deterioration in the quality of the Knesset.
Only 28.6% of Israelis said the majority of MKs work hard and do their jobs well.
(The poll was conducted among 600 Israelis with a margin of error of 4.1%.) Plesner pointed to a trend of “reduced trust in the Knesset, parties, elected officials and the political process.”
IDI research on the causes of this trend pointed to two areas – populist legislation and the political structure.
Populist bills are not unique to Israel; every country has its own version. IDI research pointed to strong populist and anti-democratic trends throughout the Western world, and Plesner defined the ones in Israel as seeking to “harm the independence of the courts, civil service and freedom of expression.”
“We see ourselves as responsible to protect Israeli democracy to help stop proposals that are dangerous,” Plesner said. “We do it through comparative research, looking at what happens in other democracies in the world, and analyzing problems and public opinion, which is how we put out dozens of position papers a year.
“We need to enrich the discourse so people understand the consequences. When people are angry, they want to do something; but it should be things that fix the problems, not make them worse,” he stated.
Some of the IDI’s recommendations on that front are to strengthen the research used to impact legislation, increase the number of hours of debate in a committee while reducing plenum debate time, and putting civil servants – meaning unelected officials – on the legislative committees.
Another way of increasing the public’s trust is reforming the system, and IDI has suggestions for electoral and legislative reform, as well as changes to make the civil service less political.
“One response is institutional changes of parties and the Knesset to be more effective and professional, and in the end, the public’s trust will increase. The changes can’t be superficial and not based on research,” he said.
Plesner pointed to political instability and unclear term lengths as one of the reasons for the Knesset’s deteriorating image.
“MKs want to be in the headlines all the time so that they’ll be elected again. They turn to gimmicks and promote initiatives that don’t have real substance, or make extreme remarks,” he explained.
The coalition system also “gives disproportionate power to marginal or extreme groups, especially in primaries, so MKs don’t look at the broad public but at the extremists within their party. That creates a disparity between the broader public and how they see their elected officials,” he said.
The IDI’s recommendations on electoral reform, which have influenced Netanyahu, Yesh Atid chairman Yair Lapid and others, include having the head of the largest Knesset faction automatically become prime minister, not having the formation of a government require a parliamentary vote of investiture and not having the government automatically disband if the Knesset does not approve the state budget.
The way Plesner explained it, IDI’s research should help answer the many questions Israel’s vibrant democracy raises.
“The idea [of IDI] is that we do research that is relevant to the public sphere; we’re not like academia that researches things that don’t apply to the public.... We are a think and do tank,” he said.