Tuesday 8 July 2008

Representation in Democracy (Electoral Draft Law of 2nd April 2008)

The Electoral Draft Law in the Knesset

1. Following on from the President’s Commission’s Final Report, and after much deliberation and lobbying, on 2nd April 2008 four senior MKs from the three big parties in the Knesset tabled a Draft Law (“Draft”) which embodied the main principles of TR – with some modifications.

2. These four MKs were: Professor Menachem Ben-Sasson of Kadima, Chairman of the Law and Constitution Committee; Mr Ophir Pines Paz, an ex-minister and current Chairman of the Home Affairs Committee; Mr Eitan Cabel , another ex-minister and current Chairman of the Labour Party in the Knesset (both Labour); and Mr Gideon Saar, Chairman of the Likud Party in the Knesset. Together, these three parties have 60 out of the 120 members of the Knesset. Surprisingly the Electoral Law in Israel is not a Basic Law. However to secure the passage of changes in it, the votes of 61 MKs are needed although only a simple majority and not an absolute majority is necessary. So these three parties need the support of all their own members – by no means a foregone conclusion – and therefore they need the support of at least one other party. And of course it also needs to surmount the opposition of the partners of the ruling Coalition Government, currently mainly the Shas Party.

3. The most important improvement in the draft is the rejection of multi-member constituencies in favour of single-member ones. This is an improvement on the President’s Final Report and a leap forward for TR (Total Representation) Otherwise, the Draft Law follows the Final Report in offering a 60/60 mix of constituency CMKs and party PMKs. In this and a few other details it has somewhat deviated from the basic principles of TR. The following is a summary of these deviations. I will analyse them one by one, looking at the rationale behind them and at how to overcome them in order to confer the full benefits of TR on the new law.

Ratio of 60/60 Constituency/Party Membership of the Knesset
4. In this, the Draft follows the Report. On the face of it, it looks symmetrical and reasonable. The real motive behind this, however, is rather different – although of course it is not plainly expressed. Today, most of Israeli candidates and the order of their appearances in the Election Lists for the general election are determined by the leadership and/or by the central organs of each party. They are in fact appointed by them and not elected. And even where primaries are held by some parties to elect candidates these primaries are mostly manipulated and in fact corrupt and lead to the choosing of candidates who are beholden to the leadership and are unrepresentative of the supporters of those parties in the country at large. It is natural that MKs who have been selected in this way (and who are the same people that will have to vote the Draft law on its journey towards ratification) are afraid that most of them will lose their seats under a new election regime. In a matter of fact, their declared support for any change towards regional and therefore accountable seats in the Knesset is not derived from good will or sound judgement, but because of pressure from the public.
We know that turkeys do not vote for Christmas. So these people hope that the 60 regional CMK seats will be a sop to satisfy the public demand for regional reform, while giving enough space through the other 60 party seats for most of them to manoeuvre their way back to the exclusive club that the Knesset provides them with.

5. There is another compelling reason why the present MKs want to preserve at least 60 Party seats to safeguard their immediate future survival. The majority of the present MKs reside in Tel Aviv and its surrounding areas. Their natural fear is, of course, that regional candidates from outside this orbit will push them out and slim down their chances of being chosen, particularly if a 90/30 ratio is used. The current Draft Law feeds these fears because it stipulates that candidates need to be residents of their constituencies. But this condition is not necessary and may in fact cause many able potential candidates to shy away from putting their names forward and start disrupting their home life even before their hopeful, but not certain, election. And although some candidates – once elected – may choose to move to their new constituencies or to acquire secondary accommodation there to gain local popularity, this should not be a pre-election condition. Moreover, keeping this condition will psychologically create two types of MKs: one local complete with certified residency and the other national, which of course is not the intention behind the division of 60/60 or the 90/30. Dropping this onerous condition will help allay the fears of the current MKs – and help solve the problem of fixing the ratio between the two.

Counting the Votes
6. Although it is not completely clear from the Draft Law, the assumption is that votes for the candidates and their parties are counted only once, in the first instance to choose the CMKs. Once the CMKs are elected by the votes of the majorities in each constituency, all the remaining votes are aggregated and distributed amongst the parties for choosing their PMKs. Any idea, as some have suggested or the Draft may perhaps implied, of using the votes again in their entirety to choose the PMKs would be tantamount to counting the CMK votes twice. In the case of Israel, such double utilisation of votes could give a huge advantage to the Arab and Jewish Religious Haredi because of their concentration in some localities. It could turn out to be that these minority parties would be given two bites of the cherry-once to elect their CMKs and then using these votes again together with what remains to give them PMK seats. Once this idea is excluded, we are left with the simple TR method of sharing and dividing the same votes between the CMKs and the PMKs.

Order of Priority in Party Lists
7. Another pitfall that the Draft needs to rectify is the order of priority of party lists. The most efficient and fair method is that offered by TR. Before the general election, it is natural that each party wants to display its star candidates to attract votes through the canvassing process. Therefore, it needs to put their names at the top of its list to show the public who their prominent and eminent future MKs from amongst its candidates would be. However, once the results of the general election are declared for each constituency, and therefore each successful CMK is declared and named, the original list of each party should be re-shuffled and rearranged in accordance with the number of votes each candidate has scored. The rearrangement of priorities could be made by each party before allocating their share of PMKs. This would provide an incentive for the various candidates to fight for each vote during the election, as that could be crucial in their being prioritised as the chosen PMKs by their parties. However, this procedure desirable as evidently it is may be left for each party to decide for itself, although it might be equally advisable to embody it in the electoral law. Moreover this simple procedure dispenses with pre-election primaries.

8. Retaining, post-election, the order of the candidates on the pre-election List could create anomalies after the election. How?! Let us take an example. Three candidates – A, B and C – from three parties are competing in one constituency. A secured 48 per cent of the votes, B secured 47 per cent and C secured 5 per cent. A won a CMK seat. But if B is, say, numbered 55th in his Party’s List, he will not secure a PMK seat, while C who is, say, numbered 3rd in his Party’s List would probably secure a PMK seat. So the 47 percent candidate lost, and the 5 percent candidate won the right to sit in the next Knesset. A situation like this would reflect badly both on the chosen PMP and his/her party.

9. Another thing that could help the existing MKs to swallow the change to 90/30 is to increase the number of Knesset seats available. The Knesset’s present membership of 120 has remained static for 60 years despite a over 10 fold increase in population. With many MKs continuing in their positions for decades without being replaced, the membership has become stale, and this has contributed to the image of the Knesset as an ancient, exclusive club, closed to and remote from ordinary citizens. Increasing the membership to 160 would facilitate dividing them into a ratio of 120/40 or even 100/60, instead of the proposed 90/30. This move would also make the proposed law more palatable for the present MKs, as it would increase their chances to survive under the new regime. Linking this measure to the appeal of introducing the regional representation of TR would also make it more acceptable to a public that has recently grown dismissive and sceptical of anything connected with the Knesset.

To Secure the Party Leader
10. The order of priority of each party’s candidates list would be declared beforehand, putting the party leader at the top in a reserved slot to ensure his/her place in the Knesset, whatever happens. The reason for this is that in a First-Past-the-Post system, the opposition will throw all its weight behind its candidate in the constituency of the leader of its rival party, in order to defeat him/her and embarrass his/her party. The reserved top spot for the leader also helps avoid upsets and confusion in the aftermath of a general election if the leader fails to win his/her constituency seat which, though unlikely, is of course, possible. Some parties may likewise want to secure the places of their Secretary or Chairman, and their Election Operation Officer, as these two would need to devote their full time to serving the party during the election period and might not be able to attend adequately to canvassing in their respective constituencies. But again, this issue is the business of each party and may not necessarily need to be stipulated by the electoral law.

11. Once the Draft Law takes care of all the above points, the exact ratio of CMKs to PMKs becomes less crucial, and although a ratio of 90/30 is the optimum, a slightly higher proportion of PMKs might be more suitable for Israel’s population make up. However, a ratio of 60/60 will definitely gives the PMKs too much power, and will not serve the purpose of the desired electoral reform, as it will immediately drag the system back into a preponderance of the Proportional Representation element.

Blocking Threshold
12. What is left is the blocking threshold. The Draft suggests that each party has to gain at least 2 per cent of the total votes and to win at least one CMP seat before qualifying to enter the Knesset. These conditions are added to what is inherent in every electoral system. These are grossly unfair measures that affect the minorities as they deny representation to their small parties and groups. It amounts to blocking their way to obtaining support amongst the electorate and is tantamount to disenfranchising them. Such a blatant blocking mechanism increases resentment and nourishes extremism and conflict. And anyway even a 10 percent blocking threshold used in Turkey did not prevent the religious party from getting a majority in the end, and forming a government by entering the leading party and controlling it from within. Of course, having said all that, we should remember that every electoral system has an inherent blocking mechanism – and so has TR. Under a regime of 90/30, to gain one Knesset PMK seat, a party needs 1/30th of the total votes left for allocation to PMKs. This is four per cent of these votes and is even a much higher percentage of the total votes. The way TR is constructed, as explained in Part One, of this book is to obviate both the necessity of blocking thresholds post elections and the reasons for holding primaries before the general elections. And yet it is so simple to explain to the public and so simple to operate.

13. Whether the Draft Law will proceed and overcome all the stages of legislation to become the new electoral law is an open question – it cannot be taken for granted. But the genie is out of the bottle, and it is too big to be squeezed back in. Regional election is in the air and in the public domain. Any political party aspiring to lead in Israel will ignore its call at its peril. Some form of regional /constituency system will have to be introduced primarily to ensure direct accountability of individual MKs to their voters. This after all was the prime reason cited by the President’s Commission. There is no compelling reason why full TR should not be chosen as the model for this fundamental change in order to repair the fractured political structure of Israel and to strengthen the Knesset – it could ultimately help in turn to solve many of the social and security problems of the country.

Supplementary Measures and Regulations
14. The weakness of the political structure in Israel is not entirely due to Proportional Representation (PR). Holland is another country with pure PR, and yet its system functions properly, and has been functioning for centuries, without causing the kind of instability that Israel suffers from. The reason for this difference is that Israel’s population lacks the social cohesion and the long tradition of parliamentary democracy that underpins Dutch politics. The make-up of the Knesset reflects the national religious and cultural divisions of what Haim Ramon, the present Deputy Prime Minister, has described as Israel’s tribalism. And although TR can help enormously in bringing about cohesion and integration, it alone cannot bridge these wide social divisions overnight.

15. Therefore, to ensure stable government and efficient governance, the introduction of any new electoral system needs to be supplemented by structural changes and regulations relating to the internal working of the Knesset and the government. The most important of these changes centres on the cohesion of political factions in the Knesset, and the tenure of the Prime Minister and the manner of his/her appointment and dismissal. Only such supporting regulations can ensure that the Knesset completes its term and that the government will therefore last the full four years. These changes can be incorporated into the electoral law or instituted internally by the Knesset and the political parties. The following are few of these regulations: some are essential; others are optional.

Political Parties in the Knesset
16. Under TR, MKs are allocated seats in the Knesset as members of parties. It is logical therefore to register their allegiances to these parties in the new Knesset. As candidates in the General Election, most of them would anyway have declared their link or loyalty to one party or the other who sponsored them as its candidates in the regions. In general, these allegiances need not be 100 per cent binding on them as MKs. Not being delegates, but representatives of their voters, they should have the right to change their views and their votes in the Knesset according to changed circumstances and their conscience. However, for MKs whose party forms part of the government, the situation is different. Some measure is needed to avoid the slow disintegration of the government during the Knesset term, and to prevent changing party allegiances (in Israel called Kalanterism; in Britain is referred to as taking the Party Whip.)
So, I propose that every MK whose party forms part of the government is deemed to have declared allegiance to his party at the time of the vote of confidence in the new government of which that party forms part. Each MK has the choice at that stage to cast his/her vote in favour of forming that government or withhold it. Thereafter, except for free votes declared by their parties (e.g. on conscientious ground), MKs who vote against their government should be deemed to have resigned and would be replaced by the next in line on the party list or through a by-election. In Israel, this needs to be embodied in the parties’ respective constitutions, and together with other regulations specifically on financing parties, may need to be anchored in State Laws. The logic of this measure is obvious. As a Party/List MK (PMK), his/her position is derived from the Party which gave him a seat on its priority list. Therefore if he is voting against the party, it is logical that he should surrender back to the party his position by resigning. If he is an MK representing a Constituency (CMK), then naturally he should resign because he represented himself to his constituents in the general elections as a member of that party and pledged his allegiance by voting for it in the government. By revoking his pledge given free when the government is formed he should resign and offer himself if he so wishes for re-election in a by-election as an independent candidate. This is both decent and logical, but it needs apply only to the party or parties of the coalition and not to all MKs.

Appointment of the Prime Minister
17. At present, the business of forming a government after a general election is too long and tortuous. The initial role of the President is superfluous. Once the results of the general election are announced, the party leader with the highest number of MKs should automatically try to form a government. He should immediately set out along broad lines his party’s or his coalition’s programme and proceed to ask for a vote of confirmation in the Knesset. If he fails to present his government within, say, three weeks, only then the President should intervene and start a procedure to ask another acceptable MK to form a government. Under the new TR system, with a ratio of 90/30, the emerging first party after the general election is bound to have the support of close to half the Knesset. If not, it is still unlikely to need the partnership of more than one other party to form a stable coalition

18. The confirmation of the Prime Minister designate and his government should require a majority of 61 MKs out of 120: an overall, that is an absolute - not a simple – majority (i.e. a 51 per cent of the Knesset, ignoring abstentions or absentees) His dismissal should be effected by the same majority – but only on a specific motion of no confidence in the government. Such a vote would then signal the start of a procedure for the dissolution of the Knesset and the declaration of a new general election. The constructive dismissal of the Prime Minster, as is sometimes suggested, is problematic and creates the very instability in the system that we want to avoid even though it is used in other countries. There are good reasons why, for example in the UK, it is the Prime Minister who chooses the time of dissolution of Parliament during its maximum five years term. That is one of the reasons why the UK premier is more powerful throughout his term – right up until the last day – than the US President, who in the last months of his predetermined time in office is often looked at as a lame duck.

19. The PM should appoint an MK to be Deputy PM. This appointment also needs a parliamentary vote of 61 MKs. The same majority is required for a replacement should the PM decide to replace him/her. Thus with this backing of parliamentary authority, the Deputy can accede without an upheaval to the position of the Prime Minister in case of his death or incapacitation.

20. A constructive vote of no confidence is not practical, and indeed is not necessary, under the above proposition, simply because those MKs who had supported the government will have to resign once they voted against their government. This avoids electing a government and immediately afterwards exposing it to the danger of collapsing. This routine practice has gradually become unacceptable to the public in Israel.

Appointment of Ministers
21. The PM should appoint all ministers and their deputies and should have the power to dismiss and replace them. MKs thus appointed need confirmation by 61 votes, en bloc initially when the government is voted in, or individually if appointed later on. Ministers appointed by the PM from outside the Knesset should be subject, in addition, to a Knesset Committee Hearing followed by confirmation by 61 MKs.

22. The PM is to be free by Law to appoint no more than half of the ministers and deputy ministers from outside the Knesset. They can be dismissed and replaced by him as above. This is designed to bring into the government professionals with experience. In some countries this professionalism is provided by the corps of the civil service. Unless the outside ministers are restricted to no more than half the government, we will be creating a presidential system through the back door.

23. Each ministry must have either the Minister or his/her Deputy as an MK. In cases where a Minister is appointed from outside the Knesset and has no deputy, an MK is appointed by the Minister, with the approval of the Prime Minister, as Knesset Liaison Secretary to represent and answer for the Ministry in the Knesset. This ensures the supremacy of parliament without compromising the authority of the PM or the Ministers.

24. All the above keeps a balance between the Knesset and the government and renders irrelevant the very unusual so called “Norwegian Law” advocated by some in Israel whereby an appointed minister has to resign his seat in parliament and is replaced by a deputy, who in turn has to vacate the position once the minister leaves the ministerial post and returns to parliament. The Norwegian arrangement may suit the circumstances of some other countries but it would be cumbersome in the much wider political and cultural environment of Israel

25. Many ask how the party leaders are elected under the TR System, especially when primaries seem to lose their importance. This question is dealt with in Part One of this book. Basically, each leader of each party except the Prime Minister, is elected or re-elected in the middle of the Knesset term by the candidates of the party in the last election (not by the Party’s MKs, who will naturally not include all the candidates). All these candidates cast the actual votes each obtained in the preceding general election – these are added together in selecting their leader. These votes are those of the real supporters of the party in the last election, and not the votes of paid members who often are recruited for that purpose. The selection becomes clean, with no corrupt practices. The procedures for re-elections of party leaders should be declared in mid term but if no candidate challenges the incumbent leader the re-election is dispensed with as the incumbent becomes automatically re-confirmed.

26. The prime minister need not submit himself to re-selection because he won his mandate by coming top ahead of the other leaders, and thus fulfilled his role and his party’s manifesto, and is therefore entitled to continue his role as leader of his party. This exception also adds to the stability of the government and is normal in other progressive democracies.

Aharon Nathan, 8th July 2008