President of the State

Introduction

On November 9 and 23, 2003, the committee met to discuss the institution of the Presidency in Israel. Discussions were based on the extant Basic Law: The President of the State. Committee Chairman MK Michael Eitan (Likud) opened the meeting with a reading of the Basic Law article by article, and the committee members submitted their comments and suggestions for the corresponding chapter in the constitution.

1. A President shall stand at the head of the State.

No members of the committee expressed an interest in abolishing the presidency

2. The place of residence of the President of the State shall be Jerusalem.
MK Roni Bar-On (Likud) objected to the frequency with which Presidents leave the city of Jerusalem, and pushed to amend the text to define both the place of residence and the place of official activity to be in Jerusalem. MK Eitan objected, explaining that this would be declared in the Chapter on Jerusalem regarding all central institutions of government; MK Bar-On insisted on making a special case, and the legal advisor was instructed to prepare one version of the draft including this recommendation.

3. (a) The President of the State shall be elected by the Knesset for seven years.
(b) The President will serve for one term only.

The Committee agreed that the fact of the President’s election by the Knesset should be given its own article, and that the term of office should be moved to another article dealing with the details of the election.

4. Every Israel national who is a resident of Israel is qualified to be a candidate for the office of President of the State.

The committee debated whether there should be a maximal age restriction, or whether the Members of Knesset may be trusted to choose the president wisely and without formal restraints. It was decided to leave the Article as it currently stands.

5. The election of the President of the State shall be held not earlier than ninety days and not later than thirty days before the expiration of the period of tenure of the President in office. If the place of the President of the State falls vacant before the expiration of his period of tenure, the election shall be held within forty-five days from the day on which such place falls vacant. The Speaker of the Knesset, in consultation with the Deputy Speaker, shall fix the day of the election and shall notify it to all the Members of the Knesset in writing at least twenty days in advance. If the day of the election does not fall in one of the session terms of the Knesset, the Speaker of the Knesset shall convene the Knesset for the election of the President of the State.

The majority of this article shall be relegated to ordinary law.

6. (a) When the day of the election has been fixed, any ten or more Members of the Knesset may propose a candidate. The proposal shall be in writing and shall be delivered to the Speaker of the Knesset, together with the consent of the candidate in writing or by telegram, not later than ten days before the day of the election. A member of the Knesset shall not sponsor the proposal of more than one candidate.
(b) The Speaker of the Knesset shall notify all the members of the Knesset, in writing, not later than seven days before the day of the election, of every candidate proposed and of the names of the Members of the Knesset who have proposed him, and shall announce the candidates at the opening of the meeting at which the election is held.

The committee debated whether this article should be consigned in its entirety to regular law, or whether the principle that members of Knesset nominate the president should be kept in the constitution. Committee members also debated whether the President should be restricted, in law or in the constitution, in his or her party membership and activity. It was agreed that Article 6(b) shall be removed to regular legislation.

7. The election of the President of the State shall be by secret ballot at a meeting of the Knesset assigned only for that purpose.

The principle of this article will be retained.

8. The candidate who has received the votes of a majority of the Members of the Knesset is elected. If no candidate receives such a majority, a second ballot shall be held. If there is no majority as aforesaid at the second ballot, either, voting shall be continued. At the third and every subsequent ballot, the candidate who at the preceding ballot received the smallest number of votes shall no longer stand for election. The candidate who at the third or any subsequent ballot receives a majority of the votes of the Members of the Knesset who take part in the voting and vote for one of the candidates is elected. If two candidates receive the same number of votes, voting shall be repeated.

The committee considered in great detail the various scenarios wherein no candidate for the Presidency receives a majority of the votes. There was no clear conclusion on whether the details of this law would remain as is or be changed to accept a plurality vote at some point later than the second vote in the case of a tie. Similarly, it was not decided whether this law would be relegated to ordinary legislation in its entirety, or whether its basic principles would be retained in the constitution, authorizing the law to fill in the detail.

9. The President-Elect shall make and sign before the Knesset the following declaration of allegiance:
"I pledge myself to bear allegiance to the State of Israel and to its laws and faithfully to carry out my functions as President of the State."

The committee decided both to add the word “constitution” to the oath, and to change the wording of the “faithfully” clause to be consistent with the oath sworn by Ministers.

10. The President-Elect shall make his declaration of allegiance and begin to hold office upon the expiration of the period of tenure of the preceding President of the State. If the place of the preceding President of the State falls vacant before the expiration of his period of tenure, the President-Elect shall make his declaration of allegiance as soon as possible after his election and shall begin to hold office upon making his declaration of allegiance.

The article will be retained in its current format.

11. (a) The President of the State -

1. Shall sign every Law, other than a Law relating to its powers;
2. Shall take action to achieve the formation of a Government and shall receive the resignation of the Government in accordance with Law;
3. Shall receive from the Government a report on its meetings;
4. Shall accredit the diplomatic representatives of the State, shall receive the credentials of diplomatic representatives sent to Israel by foreign states, shall empower the consular representatives of the State and shall confirm the appointments of consular representatives sent to Israel by foreign states;
5. Shall sign such conventions with foreign states as have been ratified by the Knesset;
6. Shall carry out every function assigned to him by Law in connection with the appointment and removal from office of judges and other office-holders.

(b) The President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.
(c) The President of the State shall carry out every other function and have every other power assigned to him by Law.

Section 11(a)1:

The committee discussed what happens when the President, whose signature on laws is generally considered ceremonial, refuses to sign a law. Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya, suggested that laws take effect even without the President’s signature, and recommended eliminating this article. The legal advisor to the president added that laws often arrive in the President’s office for his signature after they have already been published in the reshumot (the official Knesset Gazette). Dr. Sommer and Yehoshua Shofman, the Deputy Attorney General, agreed that no single signature actuates a law; it is the vote of the Knesset which puts the law into effect. [Professor Itzhak Galnoor, a political scientist from the Hebrew University, was not present at the meeting, but supports a ‘soft’ veto formula whereby the president should be given the power to postpone domestic legislation for six months and then ask the Knesset to vote on it again]. In the end Shofman and the Legal Advisor to the Constitutional Committee agreed to reduce Article 11(a)1 to, “[The President] shall sign every Constitutional Article, amendment, and law.”

Committee members discussed the changing role of the presidency, noting that while the President’s refusal to sign a law bears few legal implications, its symbolic strength is commensurate with the authority commanded by the President. When President Yitzhak Ben-Zvi refused, for instance, to sign the legislation repealing the death penalty some 50 years ago, his opinion was respected and the law was put into effect only upon his consent. The President, however, has no formal veto power. MK Eitan consented to leave the text as it stands, but warned that “Life is stronger [than legal formulae].”

Sections 11(a)4 & 5:

The committee discussed the steps necessary to ratify international agreements. Similar discussions took place (see 1, 2) under the heading of Basic Law: The Knesset, with the legal advisor’s staff undertaking to prepare three alternative formulae for the constitution. Some participants suggested requiring the President’s signature on all international accords; others were concerned this might be interpreted to give the President veto power. The Committee finally decided to write, “[The President] shall sign conventions with foreign states as have been ratified.”

Sections 11(b) & 11(c)

The committee debated what actual power the president has in distributing pardons. The High Court of Justice has ruled that the President’s decisions in this regard are subject to its review; additionally, each pardon also requires the signature of the Minister of Justice. MK Eitan pointed out that the President’s considerations in granting a pardon are not legal ones, and therefore requested a text be drafted which would exempt the Presidential Pardon from the scope of judicial review. The court should not, he felt, be allowed to contest the content of the President’s decision in this regard. Other participants suggested balancing this change with an assurance of the Presidential right to revoke a pardon (should he discover it was given in error or under misinformation). The committee continued to debate the extent of the President’s powers and prerogative in this matter; the legal advisor to the committee was finally instructed to prepare two drafts. One will retain the status quo, the other will exempt the Presidential pardon from judicial review, and remove the requirement of the additional signature of the Minister of Justice – thus giving the President final say in the matter.

12. The signature of the President of State on an official document, other than a document connected with the formation of a Government, shall require the countersignature of the Prime Minister or of such other Minister as the Government may decide.

Dr. Hillel Sommer of the Interdisciplinary Center in Herzliya adamantly opposed requiring a minister to countersign every document signed by the President. He saw this as an unnecessary relic of the British Monarchy, where the Prime Minister’s countersignature served to confirm that the King had, in fact, signed the document. In modern-day Israel, other participants agreed, so long as the constitution dictates that the President’s signature follows the recommendation of a minister – e.g., that his signature is largely symbolic – judicial review still applies to the documents signed, and a countersignature is superfluous. Sommer’s objections focused on the language of the article, which indicate that the minister’s signature is necessary in order to actuate the document. This shifts the responsibility for the document to a member of the executive branch, but it also allows the supreme court review of the acts.

Prof. Shimon Shetreet of the Hebrew University objected to the counter-signatures as well, calling them “Humiliating to the president.” He claimed that the minister who would countersign has parliamentary responsibility for the legislation by default anyway, and the signature is undesirable and purely symbolic. The committee debated this issue at great lengths. While the question has never reached the court, there is some ambiguity regarding the powers and responsibilities even in a minister’s signature. For instance, judges are nominated by a special committee of nine (see committee debates on judicial nominations). However, the nomination letter must be signed by the president (who all agree is purely symbolic here) and the Minister of Justice. Does this entail responsibilities and powers for the minister? Does he or she then exercise veto power? Or can the level of responsibility implied even by the minister’s signature be limited? While the committee leaned toward the last explanation, the answer is not legally clear. The committee reduced it to a question of judicial review: at what points can the courts intervene, and what is the act or signature under question? All agreed it was not the president’s.

The committee considered several potential changes. One would remove the phrase “official document,” substituting instead a narrower list of what documents require countersignatures. Another option was to change the phraseology of the requirement to indicate the countersignature is not a prerequisite for the act’s taking effect. The committee agreed they would find an appropriate and elegant formula which would protect the President’s dignity but retain government responsibility for state documents. In any case, the Committee legal advisors concluded, countersignatures would be retained for most documents and laws.

Immunity with regard to discharge of functions

13. (a) The President of the State shall not be amenable to any court or tribunal, and shall be immune from any legal act, in respect of anything connected with his functions or powers.
(b) The President of the State shall not, in giving evidence, have to disclose anything which came to his knowledge in the discharge of his functions as President of the State.
(c) The immunity of the President of the State under this section shall continue after he has ceased to be President of the State.

Immunity from criminal proceedings

14. The President of the State shall not be criminally prosecuted. The period during which, by virtue of this section, the President of the State cannot be prosecuted for an offence shall not be counted in calculating the period of prescription of that offense.

Evidence
15. If the President of the State is required to give evidence, his evidence shall be taken at such place and time as shall be determined with his sanction.

Dr. Hillel Sommer pointed out that the President’s immunity is broader than that granted by law and by the courts to Members of Knesset, but the committee leaned towards accepting that arrangement. The Legal Advisor to the Constitutional Committee suggested detailing in the constitution the type of immunities the President enjoys, but MK Eitan, Eyal Zandberg of the Ministry of Justice, MK Eliezer Cohen (Ha’Ichud Haleumi) and others preferred to retain a the basic provisions in the constitution, and to relegate as much detail as possible to regular law.

The committee decided to combine the content of Articles 13(a), 13(c), and 14 in the constitution; and to join Article 13(b) to 15, relegating both to regular law.

16. The salary of the President of the State, and other payments to be made to him during or after his period of tenure, including payments to be made to his survivors, shall be fixed by resolution of the Knesset, which may empower the Finance Committee in that behalf. Resolutions under this section shall be published in Reshumot.

This provision will be retained in the constitution for all state position-holders, including those in the government and the Knesset.

17. (a) Save with the sanction of the House Committee of the Knesset, the President of the State shall not hold any post, or exercise any function, other than the post and functions of President of the State.
(b) The President of the State shall be exempt from all compulsory service.

Several participants, including the Legal Advisor to the President, requested clarification of those positions the President may not hold. The Legal Advisor to the president and MK Eitan suggested the president be allowed to continue party membership, but be prohibited from active participation in his or her party. The legal advisor to the constitutional committee concluded she would relegate the latter half of Article 17(a) and all of 17(b) to regular law.

18. The President of the State shall not leave the territory of the State save with the sanction of the Government.

Two options will be prepared, one maintaining the status quo, and the other limiting the requirement of government sanction only to official visits (as opposed to vacations, etc.)

19. The President of the State may resign his office by submitting a letter of resignation to the Speaker of the Knesset. The letter of resignation shall not require a countersignature. The place of the President of the State shall become vacant forty-eight hours after the letter of resignation reaches the Speaker of the Knesset.

Some participants considered the president’s right to resign obvious, and claimed it needed no explicit mention in the constitution. The final recommendation, however, was to include an article on the end of the President’s term, which would detail all the possible reasons for ending the term, (e.g. the seven years are up, the President becomes ill or dies, the President is dismissed by the Knesset, resigns, etc.), including resignation. Once the President declares his or her resignation, he or she will be unable to retract it.

20. (a) The Knesset may, by resolution, remove the President of the State from office if it finds that he is unworthy of his office owing to conduct unbecoming his status as President of the State.
(b) The Knesset shall not remove the President of the State from office, save following a complaint brought before the House Committee by at least twenty members of the Knesset and upon the proposal of the House Committee passed by a three-quarters majority of the members of the Committee. A resolution by the Knesset to remove the President from office shall require a three-quarters majority of the Members of the Knesset.
(c) The House Committee shall not propose the removal of the President of the State from office before he has been given an opportunity to refute the complaint in accordance with procedure prescribed by the Committee with the approval of the Knesset, and the Knesset shall not resolve to remove the President of the State from office before he has been given an opportunity to be heard in accordance with procedure prescribed by the House Committee with the approval of the Knesset.
(d) The President of the State may be represented before the House Committee and before the Knesset by an authorised representative. A Member of the Knesset shall not act as the representative of the President. The House Committee and the Knesset may summon the President of the State to be present at proceedings under this section.
(e) Proceedings of the Knesset under this section shall be taken at a meeting, or successive meetings, assigned solely for that purpose. The proceedings shall begin not later than twenty days after the resolution of the House Committee. The time of their beginning shall be notified by the Speaker of the Knesset to all the Members of the Knesset, in writing, at least ten days in advance. If the beginning of the proceedings does not fall in one of the session terms of the Knesset, the Speaker of the Knesset shall convene the Knesset for the proceedings.

MK Eitan thought subsection (a) should include conduct that occurred before the President took office; Dr. Sommer suggested that if the committee wishes to adopt that interpretation, it should clarify it in the text.

Much of the detail in subsection (b) will be relegated to regular law. The constitution will retain the mention of the ¾ majority required in the Knesset, and possibly note that the Knesset shall take up the issue upon recommendation of a committee.

Regarding subsection (c), MK Ravitz expressed concern that the President could effectively be prosecuted without a regular trial. Zandberg reassured him that this was accepted practice in many countries, and MK Eitan expressed his confidence in the process and in the judgment of the 80 MKs required to remove him from office. Ravitz accepted this explanation, including the president’s right to defend himself before the House Committee and his general immunity from prosecution, the most extensive in the state.

Sections (d) and (e) will be moved to ordinary legislation.

21. (a) The Knesset may, by resolution passed by a majority of its members, declare that for reasons of health the President of the State is permanently unable to carry out his functions.
(b) The Knesset shall not pass a resolution as aforesaid save upon the proposal of the House Committee passed by a two-thirds majority of its members on the strength of a medical opinion given in accordance with rules prescribed by the Committee.
(c) If the Knesset resolves as aforesaid, the place of the President of the State shall become vacant on the day of the resolution.

This article will be slightly reworded to combine sections (b) and (c).

Temporary cessation of exercise of office

22. (a) The President of the State shall temporarily cease to carry out his functions and exercise his powers -

1. if he leaves the territory of the State - from the time of his leaving until his return
2. if he notifies the House Committee that for reasons of health he is temporarily unable to carry out his functions and the Knesset Committee approves his notification by a majority of votes -- from the time of the approval of the notification until the expiration of the period fixed by the Committee in its resolution or until the President of the State notifies the House Committee that he is no longer unable to carry out his functions, whichever is the earlier date;
3. if the House Committee, by a two-thirds majority of its members, on the strength of a medical opinion given in accordance with rules prescribed by the Committee, resolves that for reasons of health the President of the State is temporarily unable to carry out his functions -- from the passing of the resolution until the expiration of the period fixed by the House Committee in the resolution or until the House Committee resolves that the President is no longer unable to carry out his functions.

(b) The House Committee shall not, under subsection (a)(2) or (3), fix a period exceeding three months. It may extend the period, without a break, up to a maximum of three additional months. Any further extension shall require a resolution of the Knesset passed by a majority of the Members of the Knesset upon the proposal of the House Committee.

Interim President and Acting President

23. (a) If the place of the President of the State has fallen vacant, and so long as the new President has not yet begun to hold office, the Speaker of the Knesset shall hold office as Interim President of the State.
(b) During a period in which the President of the State has temporarily ceased to carry out his functions and exercise his powers, the Speaker of the Knesset shall hold office as Acting President of the State.
(c) While holding office as Interim President of the State or Acting President of the State, the Speaker of the Knesset shall carry out the functions assigned to the President of the State by Law and shall exercise the powers vested in the President of the State by Law.

The committee objected to suspending the President from his office every time he leaves the country. Most trips the president takes out of the country are official and short, and as such he should remain in his capacity. Legal advisor to the Committee Sigal Kogut suggested this be amended to match the solution found for the parallel problem in the Basic Law: The Government which provides that another person shall handle certain specific responsibilities while the Prime Minister or Minister are out of the country.

Committee members were particularly concerned about the two most substantive responsibilities of the President of the State – pardoning prisoners and establishing or dissolving the government and Knesset. As the law currently stands, the Speaker of the Knesset – an elected, partisan official – takes on all of the President’s responsibilities. The longer the president is out of office for any reason, the more problematic this becomes. Participants almost unanimously objected to allowing the Speaker of the Knesset – an MK from the majority party – to dissolve the Knesset or create a new government.

Legal Counsel Sigal Kogut boiled the issue down to three questions we must answer: How long do we endure with a Deputy President? And who should that be? And what should his or her responsibilities be?

Zandberg brought up the possibility that the deputy should be some non-political figure, such as the Chief Justice of the Supreme Court, a retired Justice, or a retired President. MK Eitan preferred the Chief Justice of the Court (an apolitical institution) to the Speaker of the Knesset, while Zandberg preferred a retired official. Ravitz saw certain advantages to using the sitting Chief Justice, but preferred a retired President.

Kogut stressed the importance of keeping these details in the constitution, though she acknowledged that the interim period before the Knesset permanently replaces the President should perhaps be shortened to 100 days. She promised to offer several options for the Deputy who is authorized to dissolve the Knesset and other similar authorities.

24. (a) The Speaker of the Knesset shall publish a notice in Reshumot as to -

1. the commencement of the tenure of the President of the State;
2. the vacancy of the place of the President of the State;
3. the commencement and termination of the tenure of the Speaker of the Knesset as Acting President of the State under section 22(a)(2) and (3).
   

(b) The Prime Minister shall publish a notice in Reshumot as to the President's leaving the territory of the State and as to his return.

This article will be relegated to ordinary legislation.

25. Notwithstanding the provisions of any other law, this Law cannot be varied, suspended, or made subject to conditions, by emergency regulations.

A general stability clause will cover the entire constitution.

26. (a) There are hereby repealed -

1. sections 2(c), 6 and 7 of the Transition Law, 5709-1949(1);
2. (2) the State President (Tenure) Law, 5712-1951(2);
   

(b) The State President, Government Members and Chief Rabbis of Israel (Fixing of Salaries) Law, 5711-1950(3), shall no longer apply to the salary of the President of the State or to payments due to him or his survivors.

This article will be moved to ordinary legislation.