The Referendum Saga

By Emanuel Navon

Member of Knesset Yariv Levin has recently tried (unsuccessfully, so far) to pass a law that would compel the Government to organize a referendum before approving any transfer of territorial sovereignty in the framework of a peace agreement. Such a law is meant to give Israel’s citizens a veto power over a possible Israeli withdrawal from East Jerusalem and from the Golan Heights (both of which were annexed by Israel in 1967 and 1981 respectively).

While Levin’s proposal has many opponents in the Knesset and elsewhere, one surprising support came from Daniel Ben-Simon, a Labor MK and former journalist for Ha’aretz. A staunch opponent of referenda like most of his peers, Ben-Simon explained his unexpected volte-face by claiming that a majority of Israelis would approve a withdrawal from the Golan according to a recent poll. We should be thankful to Ben-Simon for being so candid. It’s not that he opposes referenda because he believes they infringe upon representative democracy. Rather, a referendum is acceptable only if voters give the “right” answer.

This patronizing hypocrisy is reminiscent of the European Commission’s attitude toward popular votes. For Brussels’ eurocrats, simple citizens are not smart enough to know what’s good for them and to understand that nationalism is evil. Referenda grant unsophisticated hordes a veto power over the right decisions of the philosopher-king. Indeed, the French, the Dutch and the Irish had to effrontery to say “no” to the European Constitution. True, there is a solution to the aggravations of democracy: you keep organizing referenda until people get it “right” (it worked with the Irish). But it’s cumbersome.

In most democracies (e.g. The United States at the state level, Canada, Australia, and 24 European countries), referenda are part of the constitutional system, and are used on a regular basis when fundamental issues are at stake (amending the Constitution or approving a major international treaty, for instance). In some countries (such as Italy and Switzerland), citizens themselves can demand a referendum by gathering enough signatures. In Italy, a referendum can repeal existing laws. The rationale is obvious: representative democracy is the only way to run a large (democratic) country, but at the end of the day sovereignty belongs to the people (hence the meaning of demokratia in Greek: Rule of the People), and the latter is entitled to decide directly on fundamental issues.

Israel is therefore an unusual democracy, in that it does not give its citizens the right to practice direct democracy via referendum when fundamental issues are at stake. There have been many attempts to pass referendum laws in Israel, but all have failed. The first Knesset tried to pass a referendum law to submit the 1949 armistice agreements and the 1952 Compensation Agreement with Germany to popular approval. When Prime Minister Sharon announced in December 2003 his intention to unilaterally withdraw from Gaza, many people demanded a referendum. But, as the Government’s legal advisor ruled in February 2004, a special law had to be passed in order for a referendum to take place.

The debate that followed in Israel had nothing to do with the constitutional merits and caveats of referenda. Rather, supporters of Sharon’s disengagement plan (who dominated the public discourse in the media and in academia) tried to discredit the very use of referenda only because they knew that a popular vote was likely to block Israel’s unilateral withdrawal from Gaza. Moshe Negbi (the legal commentator of the “Kol Israel” radio) pushed sophistry to its limits when he claimed that referenda are “anti-democratic” (I couldn’t tell if he said this with a straight face since he spoke on the radio). Dana Blander from the Israel Democracy Institute published a paper for her think-tank (in March 2008) in which she wrote that passing a referendum law would “endanger the stability of democracy in Israel,” would “encourage violent acts by extreme elements,” and would “outcast Israel from the family democracies.” Ultimately, though, the reason why Blander opposes the adoption of referenda in Israel is that doing so would, in her own words, “turn the minority into the enemy of the people.” In fact, what a referendum would do is to turn the minority into a minority. Right now, this minority has a disproportionate power through its control of the Supreme Court, of Academia, and of the media. Therefore, it is scared out of its wits from the use of referenda and tries to disqualify them with the fantastic claim that they are “anti-democratic.”

Members of Knesset need to try and pass a general referendum law and stop linking every referendum law to a specific decision. Admitting that you are passing a referendum law in or order to prevent a territorial withdrawal is a recipe for failure in the Knesset. Contrary to what Blander claims, having a referendum law in Israel would bring us closer to the family of democracies, most of which do have such a law. Like in Europe and elsewhere, the referendum law should say that the approval of major decisions on constitutional reform or on international treaties should be approved by referendum, and that the right to initiate a referendum should be granted to both the executive and legislative branches, as well as to the people itself.

Passing a general referendum law is also the only way to reform Israel’s debilitating voting system of proportional representation. The Knesset has been unable and unwilling to reform our voting system because the small and religious parties put their size and very existence before the interest of the country. Interestingly, Arieh Dehry, now that he is not a Shas apparatchik, openly talks about the urgent need to reform Israel’s voting system.

It is only thanks to a referendum that de Gaulle was able to bypass the corrupt and profiteering parties of the Fourth Republic and to establish a regime that is both stable and democratic. Israel may not (yet) be blessed with its own de Gaulle, but this is no reason for not giving ourselves the means to reform our shtetl-like political system. This can be done only via a referendum. Our self-proclaimed elites will say that asking the people what it wants is against the rules. To which I would reply with the old aristocratic French question: “Que demande le peuple?”

August 1, 2010 | 1 Comment »

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  1. Discussion on changing Israel’s political system to be more in keeping with other democracies whereby MK’s run for office and are thereafter directly responsible to the people who elected them, have continued to fall flat. Some have explained that parties and their MK’s are unwilling to engage in such national discussion with a view to change because the current system affords parties and MK’s opportunities for power, prestige and personal benefit, including financial opportunities and change would compromise those personal opportunities that the current system affords them.

    Israel’s political system thus has fostered much critical comment by a number of pundits over the years, but for whatever reasons, their cause has not been taken up by either the governing politicians or the people governed.

    The quoted off the cuff statements opposing MK Yariv Levin’s proposed bill for referendums do not meaningfully explain why MK’s oppose the bill, but does serve to illustrate that the opposing statements are in conflict. That alone speaks volumes that MK’s who oppose Levin’s initiative are doing so for reasons that have nothing to do with the merit of referendums and everything to do with protecting the status quo.

    As for the issue of Israel gaining a constitution, drafts have been written for discussion, but that discussion was tepid and soon ended, leaving the draft constitutions to be stuck away in some repository for dead issues.

    Perhaps a national debate on the issue of holding national referendums on critical and fundamental issues might be the way to get MK’s and the people to move to discussing the larger issues pertaining to whether the current political system meets Israelis’ needs, both domestic and foreign or whether a democratic political system more in keeping with other democratic nations’ political systems would serve Israelis better.