Last Tuesday Knesset chairman Yuli Edelstein wrote an official letter to Prime Minister Binyamin Netanyahu in which he complained that in the case of 50 out of 150 laws passed by the Knesset in the past decade – a representative sample, some laws initiated by MKs, and others by the government – and examined by the Knesset’s legal department, the regulations which would enable the implementation of these laws have not been brought by the ministries concerned to the Knesset for approval, and thus in many cases the laws are simply not implemented.
On the same day, eight of nine Justices of the High Court of Justice (HCJ), with regard to a petition by several civic associations in connection with the enlistment of yeshiva students for military service, issued an interim order instructing the state to stop financing yeshiva students whose army enlistment had be deferred. They argued that since the so-called Tal Law was canceled by the HCJ in August 2012, and since to date the government has failed to replace this law, there is no legal basis for deferring their enlistment, or absolving them of the consequences of their failure to enlist.
It is fair to conclude that the state will ignore this order, as it has ignored other HCJ orders on controversial issues such as the removal of illegal outposts in Judea and Samaria. The impression one gets is that all too frequently our government treats laws passed by the Knesset and the rulings of the HCJ as no more than recommendations, and that there is no real sanction against such conduct – not even (or perhaps especially) at the ballot box.
In all well-ordered democracies there is a separation of powers among the legislature, executive and judiciary, which, inter alia, provides the three authorities with the power to act as checks and balances to each other, and prevent any one of these authorities – but especially the executive (i.e. the government) – from acting without any supervision or limitations.
In a well-ordered democracy the legislature is responsible for approving legislation, including the budget, and implementing effective oversight over the executive. The judiciary is responsible for ensuring that the executive acts constitutionally, and in accordance with the law. In Israel this mechanism doesn’t seem to be working properly.
Of course, the reality is much more complicated than that outlined above. In the case of the non-issuance of regulations for the implementation of laws, this practice is, undoubtedly, one of the tricks used by government ministries to avoid implementing laws that they consider bothersome. Another means used to the same end is the Economic Arrangement Law (which I have written about in the past), which simply freezes the implementation of certain laws – invariably laws originating in Private Members’ Bills. These practices are completely objectionable, and unworthy from a democratic point of view.
However, the picture is not black and white.
In many cases the fact that regulations have not been brought to the Knesset for approval has to do with sloppiness and a “we couldn’t be bothered” attitude on the part of the ministries, and regulations are in fact issued and implemented, though in the absence of Knesset approval these regulations are not legal.
One of the laws listed in Edelstein’s letter to Netanyahu is the Botanical Gardens Law of 2006, which is being implemented, but on the basis of regulations that have not been approved by the Knesset. Thus, the Jerusalem Botanical Garden in Givat Ram, which has lost much of its public financing as a result of the way the law is being implemented, could argue that the decisions of the Ministry of Agriculture and Rural Development on this issue are invalid, because the regulations on which it bases its decision have not been legally approved.
In the case of HCJ rulings that are ignored by the government, the reality is even more complicated.
As the Supreme Court (of which the HCJ is an arm) has become increasingly activist in its approach, primarily as the result of the absence of a constitution in Israel, a mounting pile of unresolved political and ideological issues which split our society in no end of directions are brought to the HCJ by petitioners in search of relief.
The basic attitude of the HCJ when it is called upon to rule on such issues is to call upon the government and the Knesset to get their act together and resolve the issues one way or another. What the HCJ did last Tuesday in the case of the yeshiva students is precisely to sound a wakeup call to the government and the Knesset to stop dragging their feet on the yeshiva student issue.
Though in the current case the HCJ decided to act, in many such cases the HCJ prefers to delay its decision time and again, in the hope that in the meantime the government and the Knesset will settle the issue by means of appropriate legislation or government resolutions, even though it is known that many important government resolutions are simply pigeonholed, and legislation on controversial issues has the habit of being based on so many compromises that it ends up being quite worthless.
According to an article by Ravital Hovel in last Friday’s Haaretz, most of the 20 petitions that have been lying on the table of the HCJ for over 10 years, and of the 30 petitions that have been on its table for up to eight years, involve the most explosive issues, such as settler- Palestinian relations, Israeli Arabs, conversion and other religion-and-state issues.
What all this points to is the fact that our system’s main failing is the government’s disinclination and possible inability to take decisions on difficult issues, and its inclination to leave such issues hanging in the air. The secondary problem is the government’s inclination, when it does decide to act, to cut corners and ignore the basic rules and norms of a well-ordered democracy.
The latter reality probably has to do more with the absence of proper governance norms than bad intentions. It is not clear what can be done to mend this reality, though quite a few academics, including Prof. Yehezkel Dror, have suggested over the years plans to achieve just that. Incidentally, the government’s failure to deal effectively with the issues raised by the social protest in the summer of 2011 has nothing to do with any of the above. Here the problem is ideological: the fact that an unbridled, neo-liberal free economy ideology, and the economic and organizational tools that it has to offer, are simply incapable of dealing effectively with the problem of expensive housing, food, education, health and other social services.
The unfortunate fact is that all the political forces that understand this to be the problem – and presumably they constitute a majority in Israel – are so deeply divided over the future of the territories and the Jewish settlements in them, and over religion-and-state issues, that they are unable and thus unlikely to cooperate in order to resolve the social problems resulting from the cost of living issue.
But as stated above, this has nothing to do with a proper division of power and responsibilities among the governing authorities, yet is undoubtedly part of our national malady.The writer is a retired Knesset employee.
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