The one democratic pool into which Israel has never dipped its big toe is the referendum. But then, small and democratic though Israel may be, it’s not a Switzerland where, under the constitution, voters can demand a binding referendum on all sorts of issues, great and small, at federal, cantonal and municipal level. Quite the reverse. The Basic Laws of Israel do not provide at all for holding referendums or popular plebiscites.
That, of course, has not stopped various calls for them over Israel’s 64-year history. As early as 1958, in a bid to reduce the influence of the National Religious Party, Ben-Gurion suggested a referendum on the electoral system. Later Begin toyed with the idea of offering a referendum on proposed laws, provided at least 100,000 citizens requested it. In the 1970s a plebiscite on the future of the West Bank was briefly considered; while in 2005 settlers in the Gaza Strip opposed to the loss of their homes, asked for a national referendum on Sharon’s unilateral disengagement plan. Sharon opposed the idea, and the law was instead passed through the Knesset.
Referenda are far from confined to Switzerland. In fact more than forty nations have held them in the recent past, or conduct them as a matter of course from time to time. Close to home, the possibility of a referendum is about to feature in the current struggle in Egypt between the military and the Muslim Brotherhood.
The high constitutional court of Egypt has refused to declare illegal the extraordinary powers granted by the Supreme Council of the Armed Forces (SCAF) to themselves; at the same time the court has deferred until September a ruling on dissolving the second constituent assembly as it did the first. That first body included parliament members, which is illegal according to the provisional constitution issued by the SCAF after the fall from power of the previous president, Hosni Mubarak.
The second assembly, however, still faces some of the problems of the first, such as parliamentary members elected again and Muslim Brotherhood domination, and so it awaits a ruling from the court on its future. In the meantime, they are hastening to prepare the new constitution in terms heavily favoring the Brotherhood element; including the powers of the president, and downgrading the power and influence of the military. They are hoping to complete the new constitution before the court rules. If so, their constitution will be put to the people in a referendum – and that, it is adjudged, will confer legitimacy on it whatever the court rules.
“If the constitution is drafted in time,” noted Zvi Mazel, former Israeli ambassador to Egypt, on 5 August 2012 in the Jerusalem Post, “it will be submitted to the people in a referendum before the court has made public its decision. It will then be nearly impossible for the court to rule against the democratically expressed will of the people.”
This gambit is precisely the thinking behind the most recent attempt to graft a referendum on to Israel’s Basic Laws.
On Monday, 22 November 2010 the Knesset, by a vote of 65-33, passed into law an Act unique in the nation’s history. In future, any proposal to withdraw from Israeli territory would have to be approved by a two-thirds majority in the legislature. In the event that this was impossible, a national referendum would be mandatory. The law took immediate effect.
Because the law applies only to sovereign Israeli territory, no referendum would be needed to withdraw from any part of the West Bank. However, should the Knesset not approve by a two-thirds majority a pullout from east Jerusalem or the Golan Heights, a referendum would be required, as both have been annexed by Israel. It would also be required if, under a future deal with the Palestinians, Israel ceded land within the pre-1967 lines in exchange for keeping the settlement blocs.
Prime Minister Netanyahu spoke in favour: "A referendum will prevent an irresponsible agreement, but at the same time will allow any agreement that satisfies Israel's national interests to pass with strong public backing." He was convinced, he added, that any agreement he submitted to the Knesset would indeed enjoy such backing.
Then Opposition leader Tzipi Livni said it was a sign of "weak leadership," and Kadima voted overwhelmingly against the bill.
Saeb Erekat, the chief Palestinian negotiator, was highly critical of the new law. "The Israeli leadership, yet again, is making a mockery of international law, which is not subject to the whims of Israeli public opinion. Under international law there is a clear and absolute obligation on Israel to withdraw not only from east Jerusalem and the Golan Heights, but from all of the territories that it has occupied since 1967. Ending the occupation of our land is not and cannot be dependent on any sort of referendum."
Erekat’s view, while understandable, takes no account of the political realities. As Israel’s previous withdrawals from occupied territory – notably the Sinai peninsula and the Gaza strip – have shown, when it comes down to evacuating settlements, the government needs the utmost determination in imposing its will against often implacable opposition from its own citizens. But these earlier examples could be as nothing compared with the situation that could develop, if it came to forcible evacuations from West Bank settlements.
Imagine the situation. An Israeli government has concluded a draft peace agreement with the Palestinian Authority involving the swapping of Israeli territory in exchange for retaining some West Bank settlements, but evacuating others. But the government is unable to command a majority for that action in the Knesset. In such circumstances, a national referendum could provide it with enhanced legitimacy for taking the necessary action. Settlers determined to combat government efforts to evacuate them would have a far weaker case if government action were backed by a majority of the nation.
All the same, should the parliamentary vote fail, going to the Israeli public would undoubtedly be something of a gamble.
The law received more than 61 votes, meaning it was passed by an absolute majority of the 120-member Knesset. This will make it harder for anyone to seek to overturn it through the High Court of Justice, because it will eliminate the argument that the law passed with insufficient support for such fundamental, quasi-constitutional legislation.
Knesset House Committee chairman Yariv Levin, whose panel prepared the law, told the plenum before the vote that it "reflects the need to ensure that fateful, irreversible decisions about conceding parts of the homeland to which Israeli sovereignty have been applied" will not be made via dubious political horse trading ("as has happened in the past," he added). Instead it will reflect the will of the people, either by way of a genuine two-thirds majority in the Knesset, or failing that, by a referendum of the nation as a whole. As such, he said, the law will promote national unity, because even opponents will not be able to argue − as they have in the past − that the Knesset's decision was not actually supported by a majority of the public.
And that, in the final analysis, is the nub of the case in its favour. Of course, the sixty-four thousand dollar question is, with the peace process apparently irretrievably log-jammed, will even the prospect of a national referendum ever arise?
Published in the online edition of the Jerusalem Post on 6 August 2012: