The `basicness' of the Basic Laws
By Ze'ev Segal
Haaretz, December 27, 2004
Experts on constitutional law from other countries are generally astounded by the twists and turns of Israel's Basic Laws, which are supposed to combine to form a constitution. Only in Israel would a Basic Law be amended a mere two years after being passed because it turns out that the original law enabled the import of non-kosher meat - as happened with the Basic Law on Freedom of Occupation. Only in Israel is it possible to enact a Basic Law with an ordinary majority of those participating in the vote, yet stipulate in the law that it can be amended only if 120 MKs participate in the vote.
Israel is also the only place where most of the 11 Basic Laws can be amended by an ordinary majority of those participating in the vote. Only two Basic Laws - Freedom of Occupation and The Government - require a special majority of 61 MKs to amend any part of them. Even a law as important as the Basic Law on the State Economy can be amended by an ordinary majority, or even by emergency regulations.
In the face of this state of affairs, the Supreme Court has made enormous efforts in recent years to strengthen the status of the Basic Laws. Thus it ruled that a Basic Law can only be amended via another Basic Law - regardless of the majority needed to do so. It also ruled that provisions of an ordinary law shall be considered null and void if they contradict a Basic Law.
Nevertheless, the question of the "basicness" of the Basic Laws remains problematic. Over the years, dozens of changes have been made in them to suit political and other needs. Some of the laws (such as the Basic Laws on the Knesset, the Government and the President) include numerous marginal provisions that are inappropriate to a quasi-constitutional document.
Given this reality, it is hard to get excited over the criticism of the decision to amend the Basic Law on Government to enable the appointment of a second vice premier, which is a condition for the unity government's establishment. This criticism is not based on the lack of any functional need for two vice premiers, but on the putative injury to the "sanctity" of the Basic Laws. This approach ignores the fact that, for instance, the Basic Law on Government's limitation on the number of cabinet ministers was eliminated at the drop of a hat, or that the Basic Laws are a receptacle for instructions that belong in a regular law, as they have no fundamental constitutional importance. That is the "constitutional tradition" that Israel has adopted.
When the latest Basic Law on Government was passed, in 2001, the Knesset was aware that the Basic Laws were too cluttered. Thus an ordinary law, the Government Law, was enacted alongside the Basic Law, just as an ordinary law had earlier been enacted to accompany the Basic Law on the Knesset. The Government Law, which can be amended by an ordinary majority, includes not only technical details, such as the list of activities on which the government must report to the Knesset, but also some matters of special importance, such as the obligation to set up a ministerial committee on national security, the requirement that certain office-holders undergo a cooling-off period, or the powers accruing to a governmental inquiry committee.
The Government Law - and not the Basic Law on Government - is the proper vehicle for specifying the role of the second vice premier, since this is not an issue of constitutional importance. Nevertheless, because the existing Basic Law explicitly states that there should be only one vice premier, it is necessary to amend the Basic Law in order to enable the appointment of a second vice premier (this would also be a good opportunity to remove the issue of the vice premier from the Basic Law entirely and transfer it to the ordinary Government Law). The amended Basic Law - if the issue of the vice premier is not removed from it - should stipulate only that a minister may serve as a second vice premier, while the Government Law should define the contents of this job, which might change from time to time.
The Basic Law defines the constitutional powers of the vice premier: convening and running cabinet meetings if the prime minister is away, and replacing the premier for up to 100 days if the latter is temporarily incapacitated. The ordinary Government Law gives the vice premier a seat on the ministerial committee on national security. This law should also determine whether the second vice premier will sit on this committee and define the second vice premier's specific powers. These could then be repealed via ordinary legislation should a new government be formed.
Since according to existing law, any amendment of the Basic Law on Government requires a majority of 61 MKs, it is appropriate to discuss the question of the second vice premier and his powers. Nevertheless, the discussion must take into account that this is not a substantive constitutional change that requires lengthy and serious consideration. In practice, most MKs merely want to give this title to Shimon Peres in the unity government. This personal legislative goal will be accomplished this time via a "cosmetic" change in the Basic Law on Government.
Issues such as the number of ministers, the appointment of deputy prime ministers or the number of vice premiers are fundamentally too trivial to be part of the state's future constitution. And the time has come, if possible, to enact this constitution, with broad support.
