Should We Worry About Bill Requiring Knesset Supermajority to Negotiate on Jerusalem?

Bill forbidding negotiation on Jerusalem's future without a Knesset majority of at least 66% contravenes several Basic Laws and Israel's democratic tradition.

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

Should the bill that the Ministerial Committee for Legislation approved on Sunday become law, it would have one of the longest and most unwieldy titles of any law in this country: The law forbidding the negotiation on the future of Jerusalem except by a majority of at least 80 members of Knesset. On the other hand, with a mere two clauses, its content will be among the shortest: The first stipulates that the government or anyone acting on its behalf cannot conduct negotiations with a view to partition Jerusalem or hand over any part of it without a majority of at least 80 Knesset members. The second stipulates that if the government overlooks this prohibition, neither the negotiations nor any decision or agreement emanating from them will be binding.

Of course, the bill has a political dimension, and not an innocuous one. Its purpose is to thwart the peace talks. The introductory notes show that the bill's intention is to even prevent "a debate” on the status of Jerusalem. What is more, today the Basic Law on Jerusalem, the Capital of Israel requires a 61-MK majority to cede portions of the city to a foreign entity - but there is no restriction on raising the issue in peace negotiation.

Other than that, this bill also has several legal flaws. Since the issue of Jerusalem is one of the core issues that will be addressed, in one way or another, in a final-status agreement with the Palestinians, the bill contradicts previous commitments Israel made. The Oslo Accords, for one, stipulate that Jerusalem will feature - alongside other issues like the Palestinian refugees, the settlements, security arrangements and borders - in the final-status stage of the talks.

At the legislative level, the bill is problematic in two ways. First, accepting a law that requires approval from 80 Knesset members with a regular majority — as the bill isn't likely to receive sweeping support in the house — is problematic. How can the approval of 80 MKs be required in a law that passed with much fewer votes? Can a regular majority saddle the Knesset in such a way? The Supreme Court has not given its opinion on the issue yet, but common sense says that an ordinary law - as opposed to a Basic Law, which enjoys constitutional status in Israel - passed by an ordinary majority cannot include such a demand.

In addition, the Knesset would be abusing its office if its current majority presumed to prevent a future majority and a future government from exercising their own judgment on this question. The attempt to preempt a decision by a future majority according to its own conscience also makes the bill anti-democratic. In the absence of a full constitution in Israel, there seems to be no hard and fast rule, but the obvious legal answer would be to say that an 80-MK majority is unconstitutional, and in any event cannot be bound by legislation that is not a Basic Law. Incidentally, it seems that anyway, should the law pass, the Knesset would be able to repeal it with an ordinary majority at any time, thus bypassing its demand for a majority of 80 MKs.

Second, the law violates the Basic Law on the Government, which stipulates that the government is the executive branch of the state. In dozens of legal rulings, the High Court of Justice ruled that Israel’s foreign relations are the prerogative of the government, as the country's executive branch. And even more straightforwardly, an ordinary law cannot contradict a Basic Law. The High Court of Justice is currently considering questions reminiscent of this issue in a petition that sought to annul an amendment to another law. Passed in 2010, it stipulates that any concession of territory in which Israeli law was applied (including the Golan Heights and East Jerusalem, but not the rest of the West Bank) be approved by referendum. In November 2012, the High Court of Justice issued a show-cause order on the question of whether a referendum could only be ordered in a Basic Law, but has not yet given its ruling on the petition.

It is interesting to note that in a different context, the High Court of Justice has been told recently that prison privatization contravenes the role of the government as the executive branch, as defined in the Basic Law. But the High Court of Justice did not address this claim, since it ruled that in any case this privatization violated the human rights set down in the Basic Law on Human Dignity and Liberty, and must therefore be cancelled. A similar claim may be made concerning the case before us even though the bill does not involve privatization, but rather a violation of the separation of powers.

The Dome of the Rock is seen on the compound known to Muslims as al-Haram al-Sharif, and to Jews as Temple Mount, in Jerusalem's Old City September 17, 2010.Credit: Reuters

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