Referendum: Decision by Guillotine

In a society that is polarized in so many ways and lacking a constitution, the referendum is a destructive experiment.

Last Monday, at nearly midnight, the Knesset enacted a revolution in Israeli democracy: By a majority of 65 to 33, it passed an "ordinary" law that ushered in the institution of the referendum, a subject of debate for some 60 years.

The obligation to hold a referendum limits the sovereignty of the Knesset in a matter that has been defined by law: abolition of the extention of Israeli law, justice and administration to East Jerusalem and the Golan Heights. Such a fundamental change should have been decided by a Basic Law.

The passing of an ordinary law that stipulates an obligation to hold a referendum will make it possible some day - ahead of an agreement on East Jerusalem or the Golan Heights - to annul that law by an ordinary majority.

Since it is not a Basic Law per se, the new legislation also falls under the legal-constitutional purview of the High Court of Justice. One might rightly argue before the High Court that such a significant change in governance contravenes the Basic Law on the Knesset, which sees the Knesset as the sovereign body that determines the rules of the game - and thus, the law should be annuled.

The Referendum Law determines constitutional facts and constitutes a landmark in the controversy on the issue, which has been going on since the 1950s. In the stormy debates over whether to accept reparations from Germany, for example, MK Menachem Begin proposed holding a referendum on the issue.

For years, referenda were proposed on changes in the parliamentary electoral system, on matters of religion and state, on the question of preventing a party list from running for the Knesset, and on territorial concessions.

In 2004, Prime Minister Ariel Sharon deemed a referendum on the disengagement from the Gaza Strip to be "a good idea"; as finance minister, Benjamin Netanyahu favored a referendum concerning the pullout, so as to preserve the "unity of the people."

After the Knesset passed the Disengagement Law, the committee representing the Jewish communities in Gaza petitioned the High Court, claiming the legislation was unconstitutional, since the matter was so fundamental that it should have been put to a referendum. The High Court rejected the petition and ruled that the system of government in Israel is built on a "government of representatives" and does not recognize the institution of a referendum.

In contrast to Netanyahu's position - supporting referenda as a way of strengthening the "unity of the people" - many of the best minds in the field of political science warn against the danger inherent in them: the sharpening of controversy in a torn society. After the new law was passed last week, Prof. Michal Shamir of Tel Aviv University said referenda will lead to a deepening of conflicts in an already divided society.

Indeed, if such popular voting becomes common following the legal precedent that has been created, it will not be hard to imagine the sharply rendered resolution of issues that will increase tensions between right and left, secular and religious, Jews and Arabs. Israel is based on a parliamentary regime which seeks political compromise and consensus among various sectors. The compromises that are reached are sometimes unacceptable, but these are usually preferable to a "guillotine decision."

Indeed, that's an appropriate image to use when considering that results of referenda can be swayed by just a few voices either way.

Referenda are accepted in many countries. In Europe one was held on whether to join the European Union and recently, on the issue of the pan-European constitution. Referenda are part and parcel of many democracies, except in the United States, at the federal level, in Germany and Japan. It cannot be argued that it is essentially anti-democratic.

The answer to the question of whether referenda are good for democracy depends on the country in question. What is good for Britain - where a referendum was held in 1975 on whether to remain in the Common Market, with the intention of bypassing party lines - could be dangerous for Israel.

The motivation of the government to use referenda to solve coalition problems, rather than to hear the opinion of the public on any given, significant issue, is known in Israel as elsewhere. But in a society that is polarized in so many ways, and lacking a constitution, it will serve as a laboratory for what could be a destructive experiment.