Draft Legislation that Deserves to Fail

Moshe Koppel

Two draft laws that recently passed a first reading in the Knesset are illustrations of how good intentions on the part of short-sighted legislators can lead to bad law, if not catastrophe.

The more benign of the two is a law proposed by MK Gideon Saar of Likud. It requires a majority of 80 MKs for ratification of an agreement ceding Israeli sovereignty on the Golan. While the intention of such legislation is entirely agreeable, the foolishness lies in the fact that the law itself can be, and almost certainly will be passed with the support of far fewer than 80 MKs. The theoretical possibility of a small number of MKs requiring a large number of MKs for some legislative purpose just makes no sense.

It's also futile. Consider the current example: the law requiring 80 MKs to vote for ceding the Golan is ordinary legislation. If defined as a Basic Law, it requires 61 MKs to pass or to repeal it. If any government, supported by the Knesset decides to return the Golan, the support of 80 MKs will, in any event, not actually be required.

Such legislative shenanigans should not be tolerated simply for some short-term political advantage. In the end they will come back to bite us.

The less benign draft law requires an indicted Prime Minister to resign. To appreciate the imprudence of such a law, consider the current law, apparently passed when cooler heads prevailed. A Prime Minister is only forced to resign when 1) he has been convicted of a crime with moral turpitude AND 2) all appeals have been exhausted AND 3) 61 MKs have voted to depose him. (Note that 61 MKs are always sufficient to replace a Prime Minister, provided that they agree on a replacement. In case of conviction, only the requirement for an agreed replacement is waived.) The reason for all these requirements is simply separation of powers. We don't want the courts to depose a Prime Minister. That is the job of the legislature.

The current proposal would waive ALL three requirements. In fact, any Attorney General could depose a prime Minister at will just by cooking up an indictment. Effectively, this would mean that every Prime Minister would be held hostage by his Attorney General, who could simply raise an eyebrow to get a wayward Prime Minister to fall into line. And since Attorney Generals, though theoretically servants of the government, are in fact servants of the Supreme Court, this would only further exacerbate the existing imbalance of power in favor of the judicial branch. It is no wonder that the Court's friends on the left support this legislation, but it is hard to fathom the depth of short-sightedness required for those on the right to support this law, just because its ostensible proximate target is Ehud Olmert.

There is a common thread connecting the above two pieces of silly legislation. In each case, the Knesset does not trust itself to act wisely and honorably in some future instance and hence wishes now to tie its own hands. While each proposed remedy is ineffective, one can hardly argue with the diagnosis.