Referendum Law debate mirrors political perspective

Analysis: It is almost impossible to separate legal opinions regarding legislation approved by Knesset from political points of view.

By DAN IZENBERG
Knesset winter session 311 (photo credit: Associated Press)
Knesset winter session 311
(photo credit: Associated Press)
It is almost impossible to separate the legal opinions regarding the Referendum Law which was overwhelmingly approved by the Knesset earlier this week from the political points of view of those who air them.
According to the law, should the government decide to give away land which is currently under Israeli sovereignty, whether by treaty or unilateral decision, it must first receive approval by an absolute majority (i.e. a minimum of 61 votes) from the Knesset. If it fails to obtain 80 votes, it must also hold a plebiscite and win a majority of the votes cast in favor or against the government’s proposal.
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The opponents of the referendum come mainly from the ranks of those who favor returning lands captured in the Six Day War and annexed to Israel in a peace deal. They fear that popular opinion may go against government policy. Those who are reluctant or unwilling to give up these areas generally support a referendum, since it offers a last-ditch opportunity to thwart a government-backed peace treaty involving land concessions.
But the above portrayal is simplistic.The proposal to hold a referendum on the question of returning captured and annexed territory was raised by none other than assassinated prime minister Yitzhak Rabin. Rabin felt obliged to hold a referendum on the return of the Golan Heights to Syria because he had promised during the 1992 election campaign that he would not do so. Seven years later, when Ehud Barak was elected, he made Rabin’s promise his own.
Many peace advocates cooperated with Rabin, including leading constitutional lawyers like Amnon Rubinstein, who was then chairman of the Knesset Law Committee, and Uriel Reichmann, president of the Interdisciplinary Center, Herzliya. Yossi Beilin, who served as justice minister in Barak’s government, though personally opposing holding a referendum was the person put in charge of preparing the government legislation. He did not refuse to do so.
At the time, there were several academics, including Tel Aviv University law professor Ze’ev Segal and Hebrew University political science professor Yaron Ezrahi, who opposed holding a referendum on constitutional grounds.
Meanwhile, the right-wing opposition, led by the Likud, demanded far more draconian legislation than that proposed by the government. Silvan Shalom led the fight. The key issue at the time was what kind of plebiscite majority would be required to approve the government proposal. Shalom demanded that it be a majority of everyone who had the right to vote (as opposed to everyone who actually voted). Shalom made no bones about it. He wanted to neutralize the Israeli- Arab vote, which he assumed would be determined by Syria’s interests rather than Israel’s. At the same time, this handicap would make it extremely difficult, if not impossible, for the government to win.
The public debate over the referendum bill was very heated for several months. Then, suddenly, in March 2000, it fizzled out overnight when the Israeli-Syrian negotiations collapsed.
It was revived five years later by the Likud over the 2005 disengagement, even though it is not clear whether the bill could have required a plebiscite over Gaza since it was not annexed territory. At any rate, the more radical right wing of the Likud learned its lesson. A plebiscite was essential because governments, whether Right or Left, were capable of doing unexpected, actually contradictory, things, always, or so it seemed, in the direction of giving up land which they had promised to keep.
During the government of former prime minister Ehud Olmert, the Knesset established a special committee to prepare the referendum bill. The disputes among the factions in the committee were bitter but eventually a bill was passed in first reading. However, before it could advance any farther, the government collapsed. Under the current government, the Knesset Law Committee applied continuity to the bill and, together with the Knesset Foreign Affairs and Defense Committee, prepared it for final reading in the plenum, where it was approved on Monday night.
Although the referendum bill still has its opponents, such as Segal, Tel Aviv University professor Eyal Gross and others, it is very unlikely that anyone will challenge its constitutionality in the High Court, especially since it was approved by more than an absolute majority of MKs.
Nevertheless, the law has at least one serious legal flaw. Although it changes Israel’s constitutional framework by taking away part of some government and Knesset prerogatives that are anchored in basic laws, which have a higher status than regular laws, the diminishing of the executive and legislative branches’ powers has been carried out in a regular law.
Despite the disagreements between the Likud and the Labor-led government in 2000 over key elements in the referendum bill, both agreed that the legislation must come in the form of a basic law because of its constitutional implications. However, when negotiations resumed five years later, Shas made it clear it would not support a basic law, even though the legislation had nothing to do with religion and state affairs. All basic laws are anathema to Shas because of its fear that all of them have the potential to threaten their way of life.