Tuesday 1 July 2008

Representation in Democracy (The President’s Commission on Electoral Reform)

The President of Israel's Commission for Examining the Structure of Government and Governance in Israel

1. On February 17th 2003, at the opening session of the 16th Knesset, the President of Israel, Mr. Moshe Katsav, stated: “I call for the establishment of a Public National Commission consisting of public figures and experts that will discuss and recommend reforms concerning the structure of government.” In this chapter, I try to give a bird’s eye view of the deliberations of this Commission and its final report. The deliberations covered almost every aspect of debates about electoral systems and related fields of governance. The records of the minutes and submissions have been preserved and could be invaluable for future students of this subject.

2. The Citizens’ Empowerment Centre in Israel (CECI), spearheaded the formation of this Commission, and on September 25th 2005, The President’s Commission for Examining the Government and Governance of Israel was established under the Chairmanship of Professor Menachem Megidor, President of the Hebrew University of Jerusalem. Upon delivering its mandate, President Moshe Katsav said:
· “I request that you analyse carefully the Israeli government structure, to examine the suitability of every alternative to the Israeli reality and the needs of the country, and to try to create a proposal that will assure increased power, stability, and effectiveness. I intend to submit these proposals to the Knesset and the cabinet.” The President went on to say: “Israeli democracy has, in my view, succeeded through the years to withstand the test of time, despite the many upheavals…the mounting elitism of the power structure can undermine the strength of the democracy more than security threats…
· Power instability can cause more extensive damage to the strength of the democracy. Despite it having withstood the trials of time, I think that power instability also prevents governments from properly fulfilling their tasks. If a recently elected government is immediately threatened by further elections, it is unable to fulfil its task properly…
· I am concerned with the decline of the status of the Knesset -- precisely because I appreciate that it is primary among power structures, and a sovereign authority. For that reason I am much concerned with and regret its negative public image.
· I am also concerned with the fact that the executive authority has almost unlimited power over the legislative branch. It is able to do whatever it wishes with the Knesset, while the Knesset, the legislative branch, has developed an intolerant dependency on the judicial branch. They apply for court ruling for every little thing while such decisions should have been reached in the Knesset itself without this insufferable dependency.
· I know there has been a lot of talk about changing the electoral system and I have my opinion on the subject though I will not voice it here. This issue must be examined versus the consideration and the consequences of such change. The national and state interests must be weighed. The question when, if at all the cultural, sectional and regional interests may be preferred over the national interests must be answered.
· I beseech you to analyse carefully the Israeli government structure to examine the suitability of every alternative to the Israeli reality and the needs of the country to try and create a proposal that will assure increased power stability and effectiveness and to propose a structure that would ensure meeting the challenges which confront the state of Israel in our generation.
· I intend to submit these proposals to the Knesset and the cabinet and for public discussion, and I hope that the Commission’s recommendations will gain the widest possible acceptance

3. I have quoted the President’s statement at length, as it authoritatively encapsulated the weaknesses of Israel’s political structure that the Commission was given the task of grappling with. After months of deliberations, its final report was handed on 1st January 2007 to the President, who in turn presented it – as he had promised – to the Speaker of the Knesset and the Prime Minister. In the aftermath of the Second Lebanon War, its findings, conclusions and recommendations were becoming more urgent and relevant.

4. To carry weight with the public, such a report had to take a clear-cut and unified approach on the issue of how to bring about an effective and representative Knesset and a stable government. Structural recommendations based on changes to the electoral system and changes in the Knesset and Government needed to be presented in a clear, straightforward package for the public to judge them. I offered the Commission my submission for the electoral reform part of the package. I stressed that I believed that no reform would endure and no system would be accepted by the electorate in Israel unless it was anchored and based on “Single Vote, Single Ballot, Single Constituency”. Explaining the case for TR-Total Representation to the members of the Commission, I put it to them that TR is simply the good old Westminster system which has been functioning successfully for hundreds of years in its native Britain – modified and adapted to the social and political needs of Israel. Its adoption by the Knesset would avoid forays into new, untested grounds which had given rise to the debacle of the direct election of the Prime Minister.

5. Unfortunately, instead of sticking to the guidance of its mandate for clear recommendations, the Commission cast its net so wide that it lost focus in the process. Much time was wasted on reviving the debate about a Presidential versus a Parliamentary System, especially amongst the academic members. This was largely caused by the way the sub-committees were divided. Instead of there being just one committee discussing electoral reform, responsibility for this basic issue was spread between three sub-committees. This was bound to result in divergent views that Commission Chairman Professor Megidor, a clear thinking physicist found hard to reconcile.

6. Whatever its value to students of political science and government, this long and hard-fought debate seemed to me to be irrelevant and unnecessary in the context of the Commission’s terms of reference. In the heat of the battle raging between the sub-committees, the protagonists forgot a fact that they should have understood: the two examples par excellence of the presidential and parliamentary systems – the USA and the UK respectively – both draw on the same theoretical background of John Locke, Montesquieu etc. The essence of both systems is representation of the people, and a government that is subject to checks and balances.

7. The Commission was also sidetracked into trying to find a system that would produce a strong leader, which is what they believed – rightly – the public was clamouring for. But why did they ignore the fact that the powers of the British Prime Minister actually exceed those of the US President? Israel’s Prime Minister lacks power because he/she lacks solid parliamentary backing. Professor Doron, despite his passion for a presidential system for Israel, was aware of the sterility of concentrating on the label rather than the content: he suggested a solution based on a strengthened parliamentary system based on the internal reform of the parties and consolidating their cohesion thus giving more stability to the Knesset and in turn the government. I believe that, irrespective of the recommendations of the Commission, the Doron Solution will be the one that both the public and the Knesset will eventually go for – but only after reform of the electoral system.

8. Another way in which the Commission became sidetracked was in debates on how to reach recommendations that would satisfy and be acceptable to politicians. This was further complicated by some members fighting for their own narrow political affiliation, instead of grappling with the whole spectrum of party political platforms. This was, of course, the wrong approach to the issues, because suddenly we found ourselves seeing things from the point of view of a 3,000-strong political establishment, rather than minding the interests of 3,000,000 voters. It is, after all, these last who will ultimately push for and force the Knesset to legislate for an electoral system that guarantees direct elections of individual members of the Knesset who can be directly held accountable to their constituents. And it was this element of accountability that the President stressed most in his brief. The ultimate outcome of this confusion resulted in the final report missing this cardinal ingredient in its recommendations.

9. From my perspective as a member of the Commission, I had to contend with yet another tug-of-war on electoral reform, between academic advocates who favoured Proportional Representation at all costs, and others who pushed for the regional or constituency principle. And the compositional mix of the membership did not help us converge. The blunt black-and-white views of army ex-generals and the legalistic argumentation of ex-senior judges clashed with the “on-the-one-hand-and-on-the-other” style of the 33 senior professors who were members of the Commission. And all this debate was often conducted in a very theoretical fashion – with less emphasis on what was suitable for the specific conditions of Israel’s society and its population-mix.

10. In the end I managed to get the message across to my colleagues in the Commission that in choosing an electoral system, we should not only aim for the best in theory, but also aim for what was most suitable to answer the basic problems facing Israel today. These problems are: a fragmented Knesset, unstable coalitions, a failure to draw our Jewish tribes together and, above all, to integrate our minorities, Arabs and religious Haredi Jews into the mainstream of our political and social life. We have to contend with the combination of all four problems when reforming the PR system that has sharpened and sustained the divisions in the country. Electoral reform is a powerful systemic tool that can help social convergence in the long run. Such structural systemic change in Israel can only endure if it takes account of all these problems together.

11. For years, the PR system has not only done little to solve the socio-political problems of the country; it has actually helped to sharpen and perpetuate them. In 1948, Israel adopted its present system by default. The Pre-Mandate Jewish Agency needed it to ensure representation for the whole mosaic of ideologies and religious sectarianism that characterised the Jewish people inside and outside Israel. The system played havoc in the post-independence period, and ever since has continued to rot Israeli society and fray the fabric of its politics. The merits of Proportional Representation are not inconsiderable – but in practice it is a system that has been proven to create and sustain instability in government after government. A succession of opinion polls have produced the same answer: people say they want a strong leader. Maybe they yearn for the good old days when, with his towering personality, Ben Gurion, the first Prime Minister of Israel, provided such leadership. But, for all his sterling qualities as a great leader and despite his efforts to play the democratic game, Ben Gurion was and acted as a benevolent dictator in the circumstances of those days – and the country loved it! The world has changed since then, and Israel desperately needs to change too. Today, the PR system is actually weakening the internal cohesion of the country and preventing its government from governing in the national interest. Tinkering around the edges will only make things worse and create a breakdown of the people’s trust in their political institutions. For instance, those who aim at disenfranchising segments of the electorate in order to achieve stability by raising the blocking threshold percentage to five per cent or more, are playing with explosive fire in the segmented Israeli society. It is paradoxical that the very principle of representation in PR needs blocking thresholds which denies representation to the voters who are blocked out.

12. To ensure a stable governments 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. These are also needed for another reason: to prevent the rejection of the parliamentary system by the people in favour of a narrow, restrictive presidential system. The most important of these changes centres on the cohesion of political factions in the Knesset, and the tenure of the Prime Minister – the manner of his/her appointment and dismissal and his right to appoint some Ministers from outside the Knesset (albeit subject to hearings and confirmation in parliament). However, this series of issues was dealt with by other sub-committees of the Commission; as a result, the crowded agenda of the Commission and its deliberations became even more disjointed, and it made it very difficult for the Chairman to concentrate on the core issue of electoral reform in isolation.

13. The whole purpose of the President’s Commission was to find an alternative to Proportional Representation. My presentation of TR as an alternative provoked many reactions in the Commission, some positive and supportive, others negative and hostile. Zeev Segal, a notable professor of Law at Tel Aviv University, told the Commission that TR represented new thinking because it took care of the losers, which was its innovative approach. Thus he hit on one of the essences of the concept of compensation in TR: i.e allowing the voices of voters who did not manage to win seats for their candidates still to be represented in the final outcome of the election (albeit with lesser weight) – thus bringing all voters by proxy inside the sovereign tent of parliament.

14. Prof Doron, on the centre-left, Mr Yoash Tsidon Chatto, on the centre-right, and Mr Jamal Majadle, a member of the Commission who provided the Israeli Arab perspective, never wavered in their support for TR and kept its caravan on the road throughout. On the other hand, Professor Naomi Chazan, the chairman of a sub-committee, led many members of the Commission in fighting tooth-and-nail for preserving the status quo of pure PR. Belonging to the Meretz Party, a splinter Labour group in the Knesset, it was obvious that her narrow interest in its independent survival took precedence over her better academic judgement. In the end, she lost the battle of ideas and – together with a few of her supporters in the Commission – refused to sign the final report.

15. Professor Kaniel of the Hebrew University sought a solution in some mathematical formula based on De Hondt. He could not be convinced that none of the Commission members, let alone the general public, could fathom its intricacies. Professor Brichta of Haifa University, on the other hand, produced a challenging but clear and readable alternative to TR. He claimed that TR did not accurately translate the results of the elections into seats in the Knesset. He said that Israel was a sectarian and divided society and the new system needed to reflect this pluralism. He further assumed that a reform that took the representation of small parties out of the Knesset could not recruit their present MKs to support TR and would therefore be doomed – or if it succeeded, it would drive them underground, on to the streets and squares outside. But where does Professor Brichta’s point lead him? He could not see that he was in fact negating the very purpose of setting up the Commission. Moreover instead of healing the division in search of unity his proposals sought to perpetuate them.

16. The whole purpose of the President’s Commission was to find an alternative to PR, not to find new tools to confirm its validity. How can the core PR principle of proportionality of votes be changed whilst being preserved? Advocates of adhering to proportionality of votes in order to convert them into seats seem to miss the whole point of correcting PR. What, then, is the use of modifying PR when all they are proposing is to gain on the swings what they are prepared to lose on the roundabouts? I believe that the reason behind their obstinacy is rigid theoretical thinking based on old theories which seek authority in antiquity. But innovations can only come about when the past is studied critically and respected, and used not to obstruct but rather to pave the way for new thinking based on new situations on the ground. With the final report leaning to a great degree to the principles of TR, Professor Brichta too ended up refusing to sign it.

17. It was obvious that Professor Megidor, the Commission Chairman, was torn between the two camps of the TR and PR systems. Shimon Shetreet, Professor of Law and a brilliant biblical scholar, mild in manner and conciliatory in tone, recommended a compromise composite recommendation. Fatigue set in, and the Chairman of the Commission, in his final report on electoral reform, accepted the compromise, which is basically a modified version of TR, but opting for multi-member instead of single-member constituencies. Thus he confirmed the main principle of TR: i.e. to elect the candidate and his/her party with one vote, using one ballot paper. Together with the majority of other members, I signed with alacrity, knowing full well that the next stage – sooner rather than later – would be to fight to change the multi-members constituencies to single-member ones.

18. It is incredible that it escaped those who helped the Chairman to write his conclusions that they missed the central requirement of the President’s brief and the Commission’s own self-imposed guidelines: i.e. to embody the principle of accountability of the MK to his/her constituents. This is what the Chairman stated in his preamble to his report:
The Commission examined several voting systems within the framework of the following principles:
The need to boost the accountability of elected representatives to voters.
The need to foster stability by encouraging the formation of larger political blocs.
The need to maintain a reasonable level of representation, especially for minority groups.

19. Indeed, Professor Gideon Doron asked, in a penetrating commentary published by the Citizens’ Empowerment Centre in Israel (CECI) in the wake of the publication of the Final Report: who in a multi-member constituency (as recommended by the Report) is accountable to his/her constituents in order to hold him/her accountable and therefore punishable in the next election? The answer to this question challenged those members of the Knesset who set out to implement the Commission’s recommendation. Senior MKs representing the three biggest parties – Kadima, Labour and Likud – tabled a Draft Law in the Knesset on 2nd April 2008. It replaced multi-member constituencies with single-member ones, and thus incorporated all the principles of TR. The next chapter is an attempt to correct in time the deficiencies of this Draft which chose a ratio of 60/60 instead of the 90/30 ratio of CMPs and PMPs recommended by TR.

20. The following is the official summary of the Final Report that the tabled draft adopted in parts:
The System of Knesset Elections
The Commission believes that the system of Knesset elections should be changed to encourage the formation of large political blocs and greater accountability to constituents; i.e., giving greater weight to personalities in the electoral process. At the same time, the Commission believes a reasonable degree of representation must be maintained.
To counterbalance these two requirements, the Commission recommends the following changes:
1. Half the number of MKs, (i.e. 60) will be elected from national lists, the current practice.
2. The other 60 MKs will be elected from 17 constituencies as per the (Ministry of the Interior) breakdown into districts and sub-districts; the number of representatives per constituency will vary according to voter population (in practical terms, this means two to five representatives per constituency….
3. To encourage party consolidation, voters will vote in a single ballot for both regional representatives and a national list (In other words, voters will not be able to split their ballots).
4. To correct somewhat the distortions of proportional representation resulting from regional divisions, there will be a compensatory mechanism to transfer party votes “lost” in regional elections to that party’s national list in order to strengthen it. (The proposed mechanism is described in detail in the full report below).
5. To some extent, voters will be able to determine the composition of the national and/or regional list/s by preferential votes (The mechanism of which is elaborated in the full report).
The election threshold will be raised to 2.5% of the valid ballots in national elections or to party victory in at least three separate constituencies in regional elections.

Aharon Nathan, 1st July 2008