Addressing a conference sponsored by religious newspaper Besheva, Rivlin voiced a widespread sense of exasperation in the face of the political system’s evident malfunctioning, as Israel braced for a fourth general election within hardly two years.
Whatever this fourth contest’s results, it is clear that behind Israel’s ongoing political limbo lurk constitutional problems that involve all three branches of government, and demand arterial surgery.
The alliance with ultra-Orthodoxy that became a pillar of Likud’s hegemony is seen by its leaders as perfectly legitimate. For others, however, it is anathema, both morally, as it legitimizes and fosters massive draft evasion, and politically, as it makes the majority pay a minority a hefty social and financial price.
Displeasure with ultra-Orthodoxy’s political status and social conduct reached new peaks in the wake of the COVID-19 crisis, amid reports of widespread violations of pandemic restrictions by ultra-Orthodox schools, and of favoritism in getting permits to fly into the locked down Ben-Gurion Airport.
Even so, ultra-Orthodoxy’s political clout, based on 15 percent of the electorate, will remain intact because of Israel’s unique electoral system.
Israel’s first general election, held hastily while the War of Independence was still raging, was based on a proportionate system, whereby voters chose not an individual, but a party, and not one district’s one representative, but a national list of candidates.
David Ben-Gurion saw already then this system’s flaws. Warning it would create too many parties, weaken the winner, and generate cumbersome coalition governments, he proposed to emulate Britain’s system, by dividing Israel into 120 regions and having each elect one lawmaker. He was overruled.
Realizing district-based elections would disempower them the small parties resisted the idea of regional elections. The war’s constraints played into their hand, because they made regional elections more difficult to organize.
The first election was thus proportionate, and once installed the system perpetuated itself. Ben-Gurion tried repeatedly to change it, only to be repeatedly resisted by the parties that benefited from the very flaws he detected in it.
Israel’s electoral system is now unique internationally. Some countries, like Germany, have a mixed system whereby some lawmakers are elected nationally and some regionally, but Israel is the world’s only significant democracy in which not even one lawmaker is elected directly by the voters, and not even one lawmaker represents a district rather than a party.
Small parties’ ability to collect votes across regions is the reason Israel’s ruling parties never won alone a Knesset majority, the way they ordinarily do in the US or Britain.
Not only does this system grant excessive power to small coalition partners, it also distances young leaders from politics. Lacking an opportunity to personally face the voters, they know they will have to spend years ingratiating party hacks before they can wield power, young leaders prefer careers in high-tech, academia, business, or the army.
Equally glaring is the crisis of Israel’s executive branch.
AS IN other parliamentary systems, Israeli ministers are almost always lawmakers. However, the Knesset, with only 120 members, is one of the world’s smallest legislatures, while Israeli governments, with about 25 ministers and five deputy ministers, are big.
Consequently, lawmakers consider executive office as more important than lawmaking, and thus spend much energy striving to become executives themselves.
The result of this is that prime ministers bargain in ministerial titles regardless of professional backgrounds and managerial abilities. Worse, ministers are also frequently replaced according to momentary political circumstances, regardless of such turnover’s impact on an agency’s output.
Turnover is such that over the past 15 years alone the defense, finance, education and foreign ministries have had eight different ministers each. Consequently, Israeli agencies often fail to consistently pursue one long-term policy, even when the executives under the ministers are professional and motivated.
For instance, in 2004 Ariel Sharon’s government assembled a high-powered panel of academics, educators and business leaders and assigned it with producing a blueprint for a comprehensive reform of the school system. The committee worked for half-a-year and emerged with a blueprint that recommended letting school principals independently hire, fire, and salary teachers while making them answerable to a community-based board. After much public debate the government held a vote and adopted the reform.
Two weeks later, however, Ariel Sharon fell comatose, and four months later the minister who led that reform’s birth and passage, Likud’s Limor Livnat, was succeeded by Labor’s Yuli Tamir. Tamir, heeding the teacher unions’ fear for their power, summarily canceled the reform, even though it had already been passed.
A similar dynamic happened when Moshe Ya’alon introduced as defense minister a reform that subjected the defense budget to a five-year deal with the Treasury, so as to prevent the annual arm wrestling between the two agencies. However, the following year Ya’alon was replaced by Avigdor Lieberman, who immediately shed the long-term deal.
The current crisis made the executive branch’s defects evermore apparent, twice: first, when the pandemic broke out and health minister, ultra-Orthodox Rabbi Ya’acov Litzman, proved to lack the managerial vision and crisis-management abilities that the situation demanded; and secondly, when Prime Minister Benjamin Netanyahu created a huge cabinet that gave jobs not to 30, but to 43 of the Knesset’s lawmakers.
The remedy for the executive branch’s inherent deformity is that ministers will not be picked from the Knesset. This way, lawmakers would spend all their time crafting laws and supervising the government, and ministers would serve longer years and deliver long-term planning and execution.
Chances of this happening are no higher than electoral reform’s prospects, since the people who can make this change happen are the same lawmakers who benefit from the existing system’s flaws. That cannot be said of the ailments plaguing government’s third branch, the judiciary.
NETANYAHU’S INDICTMENTS and his subsequent attacks on the judiciary have intensified an already pitched battle between the judiciary and the executive branch.
The High Court of Justice was mostly distant from Israel’s political dynamics until the passage in 1992 of Basic Laws Freedom of Occupation, and Human Dignity and Freedom, and the amendment in 1994 that said Basic Laws could only be compromised by new legislation, backed by at least 61 lawmakers.
The High Court was thus assigned with deciding, in reply to appeals from anyone, whether any governmental act complied with the justices’ interpretation of human dignity and freedom.
The court then began facing politically fueled appeals which soon produced controversial rulings, like rerouting the anti-terror fence, canceling a plan to privatize jails, and nixing ultra-Orthodoxy’s military-service deferment deal.
The result was that the court’s new clout became a subject of political contention, with the Right challenging, and the Left defending, its constitutional status and personal composition.
The charge by conservative critics that the High Court is dominated by liberal elitists was then redoubled by Netanyahu’s charge that the judiciary is part of a plot, together with police and the media, to unseat him. This allegation fit smoothly with the veteran right-wing claim that the unelected court is the tool with which the electorally failed Left imposes itself on the electorally successful Right.
However, criticism of the High Court is not limited to the Right.
The dean of Israel’s political scientists, Hebrew University of Jerusalem’s Shlomo Avineri, who was director-general of the Foreign Ministry during the first Rabin government, decried the court’s interference in the anti-terror fence’s routing, noting that such involvement would be unthinkable in the United States.
Similar criticism of the court’s activism was voiced by senior law professors Amnon Rubinstein and Daniel Friedman, who were among the founders of Meretz.
Despite this cross-sectional dissent, attempts to redesign the High Court have so far been partisan, led by former justice minister Ayelet shaked who used her position in the Judges’ Appointment Committee to replace six retiring justices in the 15-member court with conservative successors.
Another effort, to pass legislation that would allow 61 lawmakers to re-legislate laws should the court disqualify them as unconstitutional, was derailed by then-finance minister Moshe Kahlon.
Like the ailments plaguing Israel’s electoral system and executive branch, the judiciary, too, can be cured only by politicians who would represent a broad ideological spectrum and national consensus.
This happened once already, when Israel’s worst economic crisis produced the austerity plan that was hammered jointly by Labor’s Shimon Peres and Likud’s Yitzhak Shamir, who thus reprogrammed the Israeli economy. It happened because both sides understood the alternative to their collaboration was national catastrophe.
The question therefore is how long it will take for today’s politicians to realize that the 2020s’ crisis of Israeli governance is as severe as the economic crisis of the 1980s – if not worse.