For a Balanced Government

It turns out that rather than three branches of government in Israel there are four: the government is the legislature, the treasury is the executive, the Knesset is in charge of complaining, and the High Court of Justice is the judiciary and enforcer.

The end of the Knesset session is a good time to survey the role of the Knesset, and of the government in general. The result of such an examination is very disturbing: In Israel, the principal of separation of powers between the branches of government has collapsed, the Knesset has been weakened, the ministers have lost their freedom of action, and the status of the Supreme Court, which is frequently called upon to make order, has also been eroded.

The only component that has grown consistently stronger is the Finance Ministry. This governmental absurdity was most clearly expressed in the recent Education Committee debate on the Cinema Law. Two ministers with a great deal of political power - the ministers of justice and education - as well as the Knesset speaker and the members of the committee were present. The cinema professionals that participated in the meeting came away with warm words galore but very little real assistance. The helplessness of the legislators was a reflection of the dysfunction of the entire governmental system.

The ministers joined forces with the cinema professionals and Knesset members in their demand that the government implement the Cinema Law. The professional filmmakers tried to remind the ministers that they are the government. The ministers, for their part, firmly maintained that the government is the Finance Ministry and that they have no way to overturn its decisions.

Having no alternative, the Knesset members advised them to appeal to the High Court of Justice to instruct the government to carry out the law. They conceded, however, that such a decision by the court would not provide any real help either. If the treasury sees fit, it pays; if not, it doesn't.

To this day, no one has conducted a comprehensive study to uncover the government's violations of the law, but the facts prove that it is a widespread phenomenon. The Knesset passes laws, and the government ignores the laws or arbitrarily delays their implementation. The Knesset members, helpless to do anything, petition the High Court of Justice together with the citizenry. The High Court hands down its decision, and the treasury decides whether or not to carry it out. In the process, all are debased: the Knesset, whose laws are violated; the ministers and Knesset members, whose ineffectiveness is exposed; and the Supreme Court, which is accused of interfering in the government but is unable to change the situation.

It turns out that rather than three branches of government in Israel there are four: the government is the legislature, the treasury is the executive, the Knesset is in charge of complaining, and the High Court of Justice is the judiciary and enforcer of the law.

The weakest one is the Knesset, which passes its time conducting ineffective debates before an empty plenum, and studying bills that will not be passed due to opposition from the government. Since the beginning of the 16th Knesset, 2,546 bills have been presented but only 164 were passed into law, 93 of which were government bills. In other words, the Knesset debated 2,382 bills that were not passed, most of which were private bills.

On the other hand, the bills presented by the government all passed, making the government the principal legislative body in Israel. Within the government too, the balance of power is skewed. The treasury, rather than the Justice Ministry, decides which laws the government will pass in the Knesset.

Knesset members can try to pass bills that have economic significance; but the law states that a bill that costs more than five million shekels, and does not have government support, must have a plurality of 55 Knesset members to be passed, which guarantees that private laws that cost money will not be passed by the Knesset.

The High Court of Justice has ostensibly preserved the elevated position that allows it to review the decisions of the Knesset and government. However its decisions are not always implemented. The most egregious example is the struggle concerning the law calling for the mainstreaming of special needs children, which even after two decisions by the High Court of Justice has still not been implemented in full.

Thus in actual fact, the involvement of the High Court of Justice in the enforcement of the law weakens the justice system - when the government violates its decisions, the citizens learn a dangerous lesson in contempt for the law.

While it may seem that at lease some of the ministers have a fair amount of power, this power dwindles when budget time rolls around. The treasury determines not only the budget framework and its distribution among the various ministries, but also the distribution within each ministry.

With Netanyahu, we are seeing an exacerbation of a previous trend - the treasury deducts billions from the budget framework, and returns them outside the framework for special projects such as the school-lunch program or the implementation of the Dovrat report, thereby strengthening its hold over the ministers.

Only this fourth branch of government rules without restraint. Its leaders and officials advance or topple laws, and delay the implementation of those few laws that manage to get passed against their will. They initiate or cancel structural and governmental reforms without consulting ministers, and they are the ones that report to the public on what the government will be doing in the next budget year. The level of transparency regarding their decisions leaves much to be desired.

The French philosopher Montesquieu believed that no modern democracy can exist without a separation of powers that enables checks and balances. The concentration of too much power in one branch of government, he maintained, endangers the freedom of the citizens and their ability to defend their interests. If Montesquieu were to come to the Israel of 2004, he would discover that he was right.

The State of Israel must restore governmental balance, diminish the strength of the Finance Ministry, shore up the status of the Knesset, enforce the law, and free the judiciary from involvement in implementation of the law. Without these changes, we will very soon find ourselves with a democracy in the style of Singapore.