When is a simple majority not enough

In the Knesset, a majority of one has been deemed sufficient for all decisions. This needs to change.

Moshe_Arens_cropped-150x150By Moshe Arens

Israel needs a constitution, but is not likely to have one in the foreseeable future. With good reason. For a constitution to be adopted the support of a large majority, a supermajority, of Israel’s political parties is needed. And moreover, for the constitution to have the necessary legitimacy the support of essentially all segments of Israel’s heterogeneous society would be required, including the Arab community and the ultra-Orthodox Jewish community.

A constitution that is rammed down the throat of the minority by a slim margin of votes will not have the legitimacy in the eyes of the entire population that a constitution must enjoy. All this is not inscribed in any of the laws of Israel now on the books, but is simply common sense, appreciated by almost all. That is why Israel does not have a constitution and is not likely to have one until the wide-ranging consensus needed for its adoption hopefully develops in due time.

Attempts have been made over the years to “assemble” a constitution bit-by-bit, by passing “basic laws” initiated in the Kneset Constitution, Law and Justice Committee, which presumably will constitute elements of a constitution some day. The paradox of this quixotic legislation is that these “basic laws” are passed in the Knesset by a simple majority of those present and voting, and are thereafter protected by a requirement that an absolute majority, not a supermajority, of Knesset members is required to revoke or amend them.

The obvious flaw in this procedure is that the kind of supermajority that would be required for the adoption of a constitution is not required for this “constitution in the making,” nor for its amendment or revocation. It does not have the legitimacy needed for a constitution, even though the Supreme Court in some of its decisions has ascribed that kind of legitimacy to it.

It is generally accepted in modern democracies that legislation or decisions on matters of principal importance and those having long-range consequences for the country be approved by a supermajority, or a majority significantly larger than a simple majority of those present and voting.

Thus in the United States legislation aiming to amend or add to the constitution must be supported by at least a two-thirds majority. International treaties need to be ratified by at least a two-thirds majority in the Senate. Some of the procedural rules in the House and the Senate also require a two-thirds majority for certain decisions. These rules are aimed at protecting those who are in the minority, and preventing the majority of arbitrarily riding roughshod over it whenever it so decides. Respecting and protecting the minority on certain matters of major importance is part and parcel of the democratic process.

These principles have been ignored in the Knesset. A majority of one has been deemed sufficient for all decisions. Matters of major importance have been decided throughout the years by a simple majority of those present and voting. The Oslo Accords were approved by a single-vote majority. The law for the direct election of the prime minister, which has since been revoked, was passed by a simple majority. Changes to the electoral law for Knesset elections, like the recent substantial change to the threshold required for representation in the Knesset, were passed by simple majorities.

It is true that a one-vote majority is and should be sufficient for most legislation and decisions. That is essential for a government to be able to function. But it is not sufficient for all legislation and decisions.

It is high time to establish legislative rules that will take into account the opinions of the minority in legislation of major importance and in Knesset decisions that have a long-term impact on the country. In the absence of a constitution, it is essential to terminate the legislative anarchy that has existed for many years, and which has made Israel unique among the world’s democracies. This is a challenge for the Knesset’s Constitution, Law and Justice Committee as it begins the current legislative session. It should define those issues and decisions for which a supermajority will be required.

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