Law Requiring Referenda for Land Concession Will Polarize Israelis

Many experts say that in a polarized society, a referendum can often make the rifts even deeper.

The Knesset passed a law on Tuesday that, for the first time in Israel's history, makes referenda part of the country's system of government. The Knesset thereby curtailed its own power and supremacy over the one issue it decided to subject to a referendum - ceding control of East Jerusalem and the Golan Heights, territories to which Israeli law has been applied.

Though the law requires a referendum on this issue only, it undoubtedly constitutes a revolution in Israel's system of government. Therefore, the Knesset should have made this change via a Basic Law, which has special constitutional status. Indeed, a draft Basic Law on referenda that was prepared at one time by the Justice Ministry stated that if the Knesset wanted to require a referendum, it would have to do so via a Basic Law, and such a decision could be repealed only by another Basic Law adopted by an absolute majority of 61 Knesset members.

knesset - Michal Patel - November 22 2010
Michal Patel

The fact that the Knesset instead mandated a referendum via ordinary legislation means that under the right political circumstances, it would be possible to repeal this requirement via another ordinary law passed by an ordinary majority of all those present and voting.

Moreover, because it is an ordinary law, it is subject to judicial review by the Supreme Court: Those who oppose the idea of making referenda part of Israel's system of government could argue that they violate the principles of the Basic Law on the Knesset and are therefore unconstitutional. Had they been mandated by a Basic Law, referenda would presumably have been immune from judicial review.

The new law answers several important questions. For instance, it states that the referendum can be waived if the Knesset votes to cede the territories in question by a two-thirds majority (80 MKs ), which is impossible without a consensus among the two major political blocs.

It also dictates how the referendum must be worded: "Are you for or against the agreement approved by the Knesset?" That will spare Israel the bitter arguments other countries have experienced over how to word the referendum question.

Finally, it states that the agreement will be deemed to have passed the referendum if approved by a majority of the valid votes cast.

The argument over whether to allow referenda in Israel - which has raged since the 1950s, when it erupted over the question of whether to accept reparations from Germany - has now been settled. In fact, most democracies use referenda; the United States (at the federal level ), Germany and Japan are among the few exceptions. Even Britain - "the mother of parliaments" - held a referendum on membership of the European Economic Community, and did not view this as an inappropriate infringement on parliament's power.

The law approved yesterday introduces referenda only for one particularly sensitive issue. What remains to be seen is whether it lays the groundwork for the use of referenda on other issues as well. That would be opposed by many experts, who say that in a polarized society, referenda can often make the rifts even deeper.