Basic or not?

The current method of electing the president has fallen out of favor because it might be detrimental to one of the candidates.

October 28, 2006 21:31
3 minute read.
Basic or not?

knesset 298.88. (photo credit: Ariel Jerozolimski)


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In Israel, as in a number of other countries, a set of Basic Laws constitute something akin to a transitory or informal constitution, thus becoming by definition the most binding rules of our national game. Outgoing Chief Justice Aharon Barak ascribed particular constitutional status to Basic Laws passed from 1958 on. The present government and its direct predecessor administration hardly complained when the situation suited them. The third Basic Law, compiled in 1964, deals with the office of the president, his status, powers and mode of election. Clause 7 of the law clearly stipulates that he (or she) is to be chosen via a secret ballot of all Knesset members. Forty-two years after no one found legal fault with this Basic Law, all political weather vanes indicate that it is about to be amended. Moreover, the principal reason it has fallen out of favor is apparently that the current method of electing the president might be detrimental to the prospects of one of the candidates - Shimon Peres. To boost Peres's chances - perhaps even to seal his victory prior to the actual parliamentary electoral process - moves are afoot to switch from the secret ballot to an open vote, so that every MK and candidate, not to mention the wider public, would see whom each of our MKs supported. On the face of it, there is absolutely nothing intrinsically wrong with such an open procedure. Indeed there might even be tangible benefits, primarily in enhancing transparency. As in policy-driven votes, the public may claim a right to see just who its representatives opted for. Yet there is likewise nothing particularly objectionable with the legislature's original perception of over four decades ago. Nothing has radically changed since then and the logic of wishing to spare parliamentarians pressure accruing from publicity, particularly in matters involving personal considerations, remains relevant. It plainly allows MKs not to vote the party line but according to the dictates of their consciences. The 1964 legislation protected the individual MK from party bosses. Nothing untoward there. Such protection in the past produced a string of surprises and defeated a number of government candidates for the presidency, among them Menachem Begin's Yitzhak Chavet. It also defeated Shimon Peres when he contested the position against Moshe Katsav six years ago. Peres's backers accused MKs of having broken their promises of support for him under the cover of the secret ballot. To help Peres avoid the same embarrassment again, the cause celebre has now become doing away with Clause 7, a move led by MKs Yoel Hasson of Kadima and Yoram Marciano of Labor. Prime Minister Ehud Olmert and Peres himself are reportedly lobbying hard for the amendment, a fact which considerably improves its chances, especially as an ordinary majority is all that is needed to secure such a change. But if, as now seems likely, this not-too-high hurdle is jumped and the clause is amended, it would constitute an instance of contempt for Basic Laws by the nation's legislators. While the judiciary treats these laws as a veritable constitution, the legislature would be signalling that it regards them more as expediencies, to be retained only as long as they serve a convenient purpose and to be dumped when they negate the interests of the moment. And not for the first time. Thus Ehud Barak appointed a 25-member cabinet when the Basic Law allowed a maximum of 18 ministers, and Ariel Sharon later successfully pushed for an amendment to the Basic Law to further expand the cabinet. The problem isn't the original Clause 7 or what is promoted in its stead. We can all live with either version. But a Basic Law, if it is to deserve its quasi-constitutional status and justify some highly controversial verdicts, must by the same token be treated with a modicum of respect and care by parliamentarians. It cannot be changed on an opportunistic whim. Those who tamper with basic legislation must bear in mind that when the political wheel of fortune turns, their adversaries would be empowered to tinker with Basic Laws for their own self-serving motivations. One ill-considered move would excuse, if not actually invite, another. We would all lose thereby. Constitutions or their surrogates are meant to be stable, not putty in the hands of cynical politicians acting out of narrow, short-term motivations.

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