The Structure of Government

One of the main functions of the constitutions is to define the basic structure and institutions of government. The constitution defines the separation of powers between the branches of government. It also serves to remind the state institutions that their powers are limited and that their operation is subject to the rule of law. Without a written constitution, the division of powers becomes a political power struggle instead of a matter of sound principles of government. One prominent example the Committee discussed is the tension that exists today between the Supreme Court and the Knesset, which is in large part a result of the lack of a constitution clearly delineating the respective powers of the Judiciary and the Legislature.

The Knesset is both the legislative body and the house of representatives of Israel. Its main functions include: enacting or amending a constitution or Basic Laws; enacting ordinary legislation; and overseeing the executive branch (the government).

The main topics discussed by the Committee were:

1. The structure of the Knesset
2. The Elections to the Knesset:
   1. The Electoral System
   2. The Right to Vote
   3. The Right to be Elected
3. Immunity of Members of Knesset
4. The Knesset as the Overseer of the Executive
5. Ratification of International Treaties

The 120-member Knesset is Israel’s Legislature and House of Representatives. Members of Knesset are elected, as members of parties, every four years, unless the Prime Minister or the Knesset itself calls early elections.

The Knesset operates in accordance to Basic Law: The Knesset and related laws, the Knesset Rules of Procedure, which include the regulations regarding the everyday running of the Knesset's work, and accepted custom and procedure.

The major function of the Knesset is to legislate laws and revise them as necessary. Additional duties include establishing a government, taking policy decisions, overseeing the executive, debating issues of political importance, and electing the President of the State and the State Comptroller. Most of the work of the Knesset is performed in the plenum and in the committees.

Israel has an electoral system based on nation-wide proportional representation, and the number of seats which every list receives in the Knesset is proportional to the number of voters who voted for it. The only limitation is the “qualifying threshold,” which has been changing periodically. Currently the qualifying threshold is 2%. That is, even though a seat in the Knesset requires less then 1% of the votes (1/120 = 0.83%), a party must receive at least 2% of the votes in order to be elected.

According to the Israeli electoral system, the voters vote for a party list, and not for a particular person. Since the institution of the primaries system in some of the parties, these parties directly elect their candidates for the Knesset. Some of the parties elect their candidates via the party’s institutions. In the ultra-religious parties their spiritual leaders appoint the candidates. The Knesset elections take place once every four years, but the Knesset or the Prime Minister can decide to hold early elections.

The result of a party system combined with nation-wide proportional elections is a large number of parties that are represented in the Knesset. The qualifying threshold is aimed at minimizing the number of parties to a manageable size.

The framework of the Israeli electoral system is currently defined in Article 4 of Basic Law: The Knesset. The proposed Constitution will include a very similar system and will state:

The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, as established by law.

General: Every Israeli citizen aged 18 or older has the right to vote. Every citizen aged 21 or older (with certain exceptions discussed below, under the right to be elected) is eligible for election to the Knesset.

National: The entire country constitutes a single electoral constituency.

Direct: The Knesset is elected directly by the voters, not through a body of electors.

Equal: All votes cast are equal in weight. (One person- one vote)

Secret: Elections are by secret ballot.

Proportional: The 120 Knesset seats are assigned in proportion to each party's percentage of the total national vote, unless the number of votes a party received falls short of the qualifying threshold.

In the proposed constitution the right to vote will be conditioned on two factors only: age and citizenship. The right to vote will be guaranteed to all Israeli citizens that are 18 years of age.

Two major questions remain open for debate: should the right to vote be given to Israelis abroad? And should the right to vote be taken away from criminal offenders?

Under currently existing laws (Knesset Elections Law), Israeli citizens may vote only in the ballot near their official address in Israel. This provision effectively prevents Israelis abroad from participating in the elections. (Special arrangements are provided in the law for soldiers, police personnel, and other official envoys who cannot arrive at the designated ballot). The Constitution committee is debating whether or not this should be changed. On the one hand, other countries, such as the United States, allow citizens abroad to participate in the elections. On the other hand, unlike other countries, the number of citizens that are abroad is not at all marginal. Jews can relatively easily obtain Israeli citizenship, and there is a large population of Israeli citizens abroad. Allowing absentee ballots may give significant political influence to persons that are citizens only nominally.

According to the proposed constitution, the right to vote may not be taken away for any reason, including criminal convictions. The Committee is still debating this issue.

The Committee discussed the limitations on the right to be elected, most important among them the disqualification of candidates whose platform repudiates of the existence of Israel as the state of the Jewish people. Should this limitation, they asked, be ensconced in the constitution? The question captures the basic tension between “Jewish” and “Democratic”. While free and open elections are the cornerstone of a functioning democracy, refusing to set guidelines for candidates could one day undermine the basic values -- including the Jewish character -- of the state.

The legislature and courts in Israel have struggled to strike the right balance between these competing values, and the Constitution will need to address the issue directly. The current Basic Law: The Knesset includes limitations on the right to be elected intended to protect both the Jewish and democratic characters of the state. However, the courts have been reluctant to apply these limitations, requiring clear and convincing evidence that the danger to the Jewish character of the state is real and imminent. Ironically, despite the legislation allowing disqualification of lists which deny the existence of Israel as the state of the Jewish people, and in spite of heated legal and political controversy surrounding the platforms of some of the Arab-Israeli parties, the only parties which have been disqualified to date have been Jewish anti-Arab parties.

MK Azmi Bishara contested in Committee debates the prohibition on candidates that oppose the Jewish nature of the state, expressing the view that the Constitution should protect only the democratic nature of the state, leaving the question of its Jewish identity to be determined by ordinary processes of democratic government.

The right to be elected and run for public office is a sine qua non of democracy. Accordingly, for many years the Knesset refrained from conferring on the Supreme Court or on the Central Elections Committee (CEC) the authority to disqualify parties or candidates on ideological grounds. In 1965, however, despite the absence of a law authorizing disqualification of a party based on the content of its platform, the Supreme Court disqualified the Al Ard National Arab list on the dual grounds that the movement was opposed to the Jewish character of the State, and that it identified with enemies of Israel pursuing its physical destruction. The Supreme Court grounded its decision in the need for “a defensive democracy” which could overcome threats to the Jewish State.

In 1984, the Supreme Court declared that, given the importance of the right to be elected, the power to disqualify candidates must be explicitly provided for in primary legislation. Consequently, in the Neiman I case (1984) <link if there is one in English>, the Court unanimously overruled the CEC’s decision to disqualify the racist Kach party, and the Progressive List for Peace (PLP), a political party which advocating a bi-national state. The Court based its decision on the absence of any law conferring on the CEC the authority to disqualify parties or candidates. Not satisfied with this technical justification, however, Justice Aharon Barak additionally outlined a probability test assessing the likelihood that Kach would implement its racist aims if elected. After concluding it was unlikely to do so, he confirmed Kach’s participation in that year’s elections.

The Knesset’s response came swiftly. In 1985, the legislature amended Basic Law: The Knesset to include the new Article 7A, stating that political parties may be banned from participating in parliamentary elections for several reasons, including the negation of the existence of Israel as a democracy and as the state of the Jewish people:

Article 7A: Prevention of Participation of Candidates' list

A candidates' list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following:

(1) Negation of the existence of the State of Israel as the state of the Jewish people;

(2) Negation of the democratic character of the State;

(3) Incitement to racism

The section was amended again in 2002 both to conform with the 1992 Basic Laws and in response to ongoing violence with the Palestinians. The new text stated that a person or a party could not stand as a candidate for Knesset their goals or actions suggested either a “Negation of the existence of the State of Israel as a Jewish and democratic state,” or “Support for armed struggle by a hostile state or a terrorist organization against the State of Israel.” 1992 saw the enactment of the Parties Law, which similarly restricted the registration of political parties negating the Jewish and democratic characters of Israel. Finally, the amended law now permitted the disqualification of a single candidate as well as the entire list.

Since the introduction of Article 7A, the CEC has exercised its power to disqualify candidates in only two types of cases: those disqualifying Kach and its offspring – Jewish racist groups calling, among other things, for mass expulsion of the Palestinian citizens of Israel – and certain Arab parties advocating, among other things, the Palestinian Right of Return and the removal of “Jewish” from the definition of Israel. The Supreme Court, however, has approved the disqualifications of the CEC in only three cases, all pertaining Jewish racist groups. The Court has approved no disqualification of Arab parties or candidates.

The newly amended Article 7A was first applied by the Supreme Court in 1988 in the Neiman II case, in which the Supreme Court affirmed the disqualification of Kach, arguing that its publications and activities did include “Incitement to racism and the negation of the democratic character of the state of Israel”. At the same time the Court upheld a decision of the CEC not to disqualify the PLP. The majority of the Justices agreed that while the amended law allowed for disqualification of a list that opposed the Jewish character of the State – even if it did not threaten Israel's security – there was insufficiently convincing evidence to disqualify the PLP on these grounds. The Court emphasized the need for careful scrutiny of the evidence before disqualifying candidates. Former Chief Justice Meir Shamgar determined that in light of the importance of the right to be elected, the disqualification of a list is possible only if the court is convinced that the disqualifying elements are central to the platform of the candidate or the list, that they are expressed in a “Severe and extreme” form, and that the evidence of the actions or goals are “Convincing, clear and unequivocal.”

Shortly before the 1999 elections, the Court heard a petition to disqualify the National Democratic Alliance (NDA), headed by Azmi Bishara, based on an interview Bishara gave the Ha’aretz daily newspaper the previous year. Bishara had said, “Judaism is a religion, and not a nation, and the Jewish public all over the world does not have any national status. … I don’t think that this public has any right to self-definition. I think that from an historical perspective, the idea of the state of the Jews is not legitimate. And if you ask me, I am not ready to give Israel historic legitimacy” (Ari Shavit, “The Citizen Azmi,” Ha’aretz. May 29, 1998).

The Supreme Court saw in Bishara’s words, as well as in his other expressions, the negation of the state of Israel as the state of the Jewish nation, emphasizing that he “Has come dangerously close to the boundary which should not be crossed." The Court decided not to disqualify the NDA list, however, because they were not convinced beyond doubt Bishara’s views represented the NDA’s basic views (it should be recalled that, at the time, only a full list could be disqualified, and not a single candidate). It was possible to conclude, said the court, albeit with difficulty, that the NDA did not negate the existence of the state of Israel as the state of the Jewish people.

In 2003, the CEC disqualified the NDA, and individual MKs Bishara and Ahmad Tibi (Arab Movement for Renewal – Ta’al). The CEC also decided to allow former Kach activist Baruch Marzel to run. The Supreme Court, however, overturned the disqualifications. A 7 to 4 majority decided to approve Bishara and the NDA’s candidacies, and the same majority confirmed the candidacy of Marzel. Tibi was confirmed unanimously.

Chief Justice Barak, writing for the majority, emphasized again the constitutional status of the right to be elected and the need for clear and convincing evidence supporting disqualification. Barak saw a reasonable doubt as to the claim that Bishara and the NDA supported armed opposition to Israel and denied the Jewish character of the state. Any such doubt, the Court decided, should benefit the candidate.

According to the basic principle of checks and balances, the legislature is also the supervising body over the executive. The Committee discussed several issues regarding the relations between the Knesset and the government, and the desirable constitutional arrangements:

The power of the Knesset to summons officials and request information

Currently, certain provisions of Basic Law: The Knesset and Basic Law: The Government empower the Knesset to summon officials in the public service and request information regarding their activities. Only the Knesset and its committees, but not an individual member of Knesset, can demand disclosure of such information.

Committee members felt that the current stipulations are not sufficient and do not give the Knesset and its members enough access to information. It was agreed that the proposed constitution would specify in greater detail the right of the Knesset, its committees, or individual MKs, to demand disclosure of information and appearance from members of the executive branch and public bodies, and that the constitution would authorize the Knesset to determine in law the exceptions to the obligation of disclosure of privileged information. The constitution would also limit the right of an MK to receive information which will be narrower than that of the Knesset as a whole or one of its committees.

Parliamentary commissions of inquiry

Currently, the power to establish a public commission of inquiry is reserved for the Government alone according to Commissions of Inquiry Law of 1968. In cases where the Government decides there is an issue of major public importance that requires investigation, such a commission can be established. Such commissions are headed by a senior judge and their members are nominated by the Chief Justice of the Supreme Court. Most significantly, a commission of inquiry has enforcement powers similar to those of a court and it is authorized to summon witnesses, issue search warrants and collect evidence for its inquiry.

The Knesset may form parliamentary commissions of inquiry according to article 22 of Basic Law: The Knesset, by empowering one of its permanent committees to conduct an inquiry. The members of such a commission are MKs. However, such commissions of inquiry have no greater power than an ordinary Knesset committee, they lack enforcement powers and cannot force a person to come and testify or submit any documents.

Members of the Committee thought that the Knesset, as representing the public views, is the most suitable body to appoint commissions of inquiry which are usually appointed to investigate shortcomings of the Government. The Government should not be given the sole authority to investigate itself. It was decided that the proposed constitution would empower both the Knesset and the Government to appoint public commissions of inquiry that have full enforcement powers. It will further state that such a commission will be headed by a senior judge and its members are to be nominated by the Chief Justice of the Supreme Court. Other details regarding conducting the inquiry will remain as it is today in the Commission of Inquiry Law.

Knesset supervision over appointments to the public service

The Committee heard overviews regarding the appointment procedures in the United States and considered the question of whether, and to what extent, appointment to public service in Israel should be political versus professional. In particular it discussed the appointment of the Attorney General. The Committee also debated whether to establish in the constitution a demand for Knesset approval of appointments for senior positions in the public service.

A treaty is an instrument by which countries agree to place limitations on their sovereignty. They are often called charters, agreements, protocols, memorandums, pacts, exchanges of notes, or any of more than 25 other titles; they bind states with rights and obligations under international law. The head of state or the executive branch is usually authorized to negotiate and sign international treaties, but ratification, wherein the state’s own legislature makes the changes to domestic law necessary to implement the treaty, often complicates this balance of power. The current situation – a conflict between international obligations and domestic law Though in the international arena a convention signed by the executive authority enjoys full recognition, such international agreement has little relevance to domestic Israeli law unless ratified by the Knesset in a form of a law of the Knesset. Unfortunately this can create situations where the executive branch makes an international commitment that is not carried out because of lack of relevant domestic legislation. This is particularly relevant when the government changes or when the prime minister who signs an agreement does not have a majority in the Knesset.

Important questions to be considered are: should the Knesset ratify international treaties before they are signed? What type of ratification is necessary? Will only certain types of accords require Knesset ratification? If so what types of accords? Should Knesset ratification automatically give accords the status of domestic law? These questions are of particular importance to Israel given the likelihood of exchanging lands and adjusting boarders in the future.

The committee discussed two key issues involved in the ratification of international treaties: Knesset ratification of international treaties, and International treaties and domestic law.

Authority to sign treaties

Currently the executive branch exercises the authority to sign international agreements that bind the state; the law does not require the legislature to approve international agreements as does, for instance, American law. However, Israel’s government has traditionally placed international accords of particular political or military importance (e.g. peace agreements) on the Knesset table for ratification. This formal approval, rooted in the directives of both the government and the Attorney-General, renders the accord fully binding. This requirement highlights the centrality of the Knesset in accords with significant domestic ramifications.

The Knesset and the people must approve any accord removing or extending the authority of Israeli law from a territory

One notable exception to the executive branch authority is the requirement that 61 members of Knesset must approve any government decision or international agreement removing or extending the authority of Israeli law from any territories currently under its rule. The law also requires approval by national referendum, as soon as a law regulating national referenda is enacted.

The current ratification directives according to the government and the Attorney-General

Currently, the rules state that a minister who wishes to bring an international agreement to the Government for approval must first submit to the Knesset copies in Hebrew, specifying any changes it will require in domestic law. The government shall not approve such an agreement unless it has been in the hands of the Knesset secretariat for at least two weeks. Additionally, in cases of special importance, the Government may request the Knesset actively ratify an accord.

In some countries, international treaties take precedence over national law; in others, a specific law may be required to give an already ratified international treaty the force of a national law.

Arguments in favor of automatically adopting conventions into Israeli domestic law favor a model similar to the United States, whereby the legislature must approve the agreement simultaneously with the executive branch. This ensures that domestic law does not contradict the states international commitments.

Those who argue against automatically adopting a convention into Israeli domestic law support greater parliamentary participation in the process of creating international treaties. They argue that international conventions often lack the detailed language necessary in order to create effective domestic legislation. Furthermore, they argue that without Knesset ratification situations may arise whereby the executive branch makes an international commitment that is not carried out due to a lack of relevant domestic legislation.

Judicial authority in Israel is vested in courts and tribunals. The courts have general judicial authority in criminal, civil and administrative matters, while the tribunals, including religious, labor, and military tribunals, have specific authority over certain matters and people.

The judiciary also acts as Israel’s watchdog over the rule of law and protection of rights. In this capacity, courts review actions of the executive and sometimes the legislature for legality, sometimes barring legislation or action. In the absence of a written constitution or bill of rights, however, the judicial branch is put in a delicate position. It must find a law unconstitutional without referring to a constitution, it must uphold the supremacy of Basic Laws whose status is undefined, and it must balance its powers against those of the Knesset where neither is quite sure where its responsibilities end and the others' begin. The Committee spent much time discussing the delicate relations and balance of powers between the Supreme Court and the other branches of government, as well as its composition and the procedures for appointing judges.

The Supreme Court is uniquely prominent in Israel's legal and political life for two main reasons. First, the Supreme Court functions both as the highest appellate court -- hearing criminal and civil appeals from the district courts -- and as the High Court of Justice (HCJ). As HCJ, the Supreme Court is both the first and last address for complaints about the legality of decisions of State authorities. This function is unique to the Israeli system. The HCJ exercises judicial review over the other branches of government, and has wide powers “in matters in which it considers it necessary to grant relief in the interests of justice.” The Supreme Court hears over a thousand petitions each year as HCJ. Often these cases are high-profile ones challenging acts of top government officials, as well as primary legislation of the Knesset itself.

In addition to the powers of the Supreme Court, the Committee considered various models of constitutional review, the appointment procedures for judges in general, and the relations between the courts and the special tribunals, especially the relations between the Supreme Court and the religious tribunals. It is the aim of the Committee that the proposed constitution delineate more clearly the respective powers and roles of the courts and tribunals and their relations to the other branches of government, in accordance with the principles of democratic government.

The Supreme Court is uniquely prominent in Israel's legal and political life for two main reasons. First, the Supreme Court functions both as the highest appellate court -- hearing criminal and civil appeals from the district courts -- and as the High Court of Justice (HCJ). As HCJ, the Supreme Court is both the first and last address for complaints about the legality of decisions of State authorities. This function is unique to the Israeli system. The HCJ exercises judicial review over the other branches of government, and has wide powers “in matters in which it considers it necessary to grant relief in the interests of justice.” The Supreme Court hears over a thousand petitions each year as HCJ. Often these cases are high-profile ones challenging acts of top government officials, as well as primary legislation of the Knesset itself.

The High Court of Justice derives its powers from section 15 of Basic Law: The Judiciary. The text’s origin is in the British mandate, and was originally designed to grant the High Court of Justice the power to review acts of the executive authority. In time section 15 came to be the basis for the HCJ’s judicial review Knesset Legislation.

Section 15(c) of Basic Law: The Judiciary authorizes the Supreme Court to sit as the High Court of Justice under two conditions: In cases where the HCJ deems it necessary to grant relief in the interest of justice, and when there is no other legal body that can grant effective remedy.

Thus, the jurisdiction and the powers of the Supreme Court are extremely wide. And it is ultimately up to the HCJ to decide, exercising its wide discretion, which cases to hear and what remedies to grant.

Sections 15(d)(3) and 15(d)(4) of Basic Law: The Judiciary authorize the HCJ to exercise judicial review over those courts, tribunals, bodies, and persons with judicial or quasi-judicial powers that are not subject to the Supreme Court as an appellate court. Thus, the HCJ is granted the power of judicial review over the religious courts under certain conditions. Indeed, the language of this section reflects the special sensitivity with which the religious courts are treated in the Judiciary, and the narrow judicial review of the HCJ over their decisions. The Israeli religious courts enjoy significant judicial autonomy and may judge according to their particular religious laws. The grounds for intervention of the Supreme Court in the decisions of the religious courts are narrower than other judicial tribunals. A petitioner must demonstrate that the religious court exceeded its authority. Pointing to an error in the religious court’s ruling is insufficient cause for intervention.

The Committee considered whether to differentiate between the Supreme Court’s authority to review government actions and its authority of judicial review over Knesset legislation, and discussed various approaches to the issue of the Supreme Court’s power to invalidate Knesset legislation. The Committee also discussed what the consequences should be when the Supreme Court finds that Knesset legislation contradicts the Constitution. Should the Court immediately repeal the legislation? One suggestion was to adopt a British-style model, whereby the Court has the authority to make a “declaration of incompatibility,” that is, to declare a piece of legislation incompatible with the Constitution, and return the issue to the Knesset, which reserves the right to decide whether to amend the law according to the Court’s recommendation.

Speakers at the Constitution, Law, and Justice Committee expressed a variety of views on the extent of judicial review exercised by the Supreme Court. Some thought the Supreme Court interferes overly much in controversial political matters. Committee Chairman MK Michael Eitan (Likud) raised the possibility of defining in the constitution the boundaries and limitations on the HCJ’s power to interpret legislation, and wondered whether it would be possible to define certain issues as beyond the courts’ sphere of activity.

Other speakers thought that the HCJ exercises its authority in a restrained and balanced manner, pointing out the fact that in the twelve years since the legislation of the Basic Laws of 1992, the HCJ invalidated only three Knesset laws and declared a fourth unacceptable.

Once a constitution is adopted, ordinary legislation and acts of government that contradict clauses of the constitution will be invalid. The question then arises: who shall have the authority to determine whether or not certain legislation or acts of government contradict the constitution? In most democracies the authority to do so is given to the courts. In other words, the courts are given the power to pass ordinary legislation and acts of government under judicial review, and to invalidate legislation and actions they deem unconstitutional.

Until today, the legislature has never explicitly granted a general power of judicial review to the courts in Israel, and the Supreme Court’s decision to take such powers unilaterally have been a major source of tension between the Knesset and the Supreme Court.

For the first time in Israel’s legal and political history, the constitution will formally and explicitly establish the principle of judicial review. However, there are various models of constitutional review and the committee considered mainly two: the centralized and the de-centralized models.

According to the centralized model, the power of judicial review of legislation is reserved only to the Supreme Court. According to the de-centralized approach, lowers courts are also empowered to invalidate legislation they consider to be unconstitutional. The committee discussed the advantages and disadvantages of the models during several meetings, and heard the opinions of judges and scholars, including the current Chief Justice of the Supreme Court Aharaon Barak and the former Chief Justice Meir Shamgar.

The majority of committee members, as well as scholars and judges, seem to support the centralized system of judicial review.

What is the right of standing, or Locus Standi?

The Supreme Court may refuse to hear a petition against a certain act of government if the petitioner is not harmed by the act. That is, the court may demand that a petitioner show sufficient personal interest in the act, or that the act is personally relevant to him or her and affects his or her life, as a condition to the court’s hearing the petition. When this demand is satisfied we say that the petitioner has the right of standing, or locus standi.

This tool enables the Court to refrain from hearing cases that are politically and ideologically contested rather than directly harmful to some.

Basic Law: The Judiciary does not require that a petitioner show locus standi before the Supreme Court can hear his or her complaint, but over the early years of the state the Supreme Court has established these rules of standing by precedent, expanding them gradually over the years.

In recent years, however, the Supreme Court has been rapidly relaxing the rules of standing. Today, basically anyone can petition the Court against any governmental action.

The committee discussed whether the right to petition the Court is overly broad and opinions were heard on both sides.

In addition to ordinary courts, there exist special tribunals that have specific jurisdiction and authority over certain matters, such as labor courts, military courts, and religious courts.

The relations between the Supreme Court and the tribunals are complex and controversial. In recent years the Supreme Court has extended its authority and it considers itself to a large extent to be the final authority over the special tribunals. Some members of the committee expressed their worries regarding this tendency. For example, the religious members of the committee expressed their view that religious courts should not be bound to decisions of the Supreme Court but rather enjoy ultimate authority in matters under their jurisdiction.

The Prime Minister and the Ministers comprise the executive body of Israel. The Committee discussed the functions of the government, its composition and powers, the ways in which it is formed and dissolved, and the relations between the executive and other branches of government. One of the main topics discussed was whether Israel should adopt a presidential system of government. Former prime ministers that attended the Committee meetings, as well as scholars of constitutional law, supported the idea.

In the last decade Israel's system of government has been oscillating between the parliamentary and the presidential system. From the establishment of the state in 1948 until the elections to the Fourteenth Knesset in 1996, Israel maintained a parliamentary system of government – a system that requires the government to be appointed, supported, and, as the case may be, dismissed by parliamentary vote. Under this system, voters voted for parties, and the leaders of the largest parties were called to form a coalition government and to serve as prime ministers. However, in 1992 a new version of Basic Law: The Government was enacted, providing for the direct election of the Prime Minister by the people.

This radical reform in the system of government was meant to solve the two major deficiencies in the parliamentary system: the instability of governments, and the ineffectiveness of the parliament. Under the system that existed until 1992, as long as the government enjoyed a majority in the Knesset, the Knesset had very limited control and influence on the government. This relationship between the executive and the legislature was not in accordance with the principle of checks and balances. On the other hand, the large number of parties in the Knesset often made it difficult to establish viable coalition governments. This had a serious impact on the capability of the government to govern and on the stability of the political system in general. The reform aimed at strengthening the government by granting the prime minister the power to form a stable and effective government, thereby freeing the prime minister from the extortionist demands of small parties and individual MKs. At the same time the reform aimed at establishing the independence of the legislature from the government and put in place more effective mechanism of parliamentary supervision over the executive.

The reform stopped short of bringing about a fully presidential system because even after the reform it remained possible for the parliament to discharge the prime-minister during his tenure, either by a parliamentary vote of no-confidence by an absolute majority of 61 of the 120 Knesset members after which general elections occur, or by a qualified majority of 80 members of the Knesset after which elections for prime-minister only ("special elections")occur.

The new system, however, failed to achieve its objectives. As the elections of 1996 and 2000 demonstrated, the new system in fact significantly increased the bargaining power of the small, medium-sized, and religious parties. The two major parties –Likud and Labor – were drastically reduced in size because the system of direct elections for Prime Minister gave the Israeli voters the option of splitting their vote: they could now vote for a candidate for Prime Minister from one of the major parties and then vote for another, sectorial, party for the Knesset. This weakened significantly the two major parties, because it enabled voters to support sector parties, yet still elect the country's leader. Both governments elected under the new system – the Benjamin Netanyahu and Ehud Barak governments – suffered from instability and inability to govern effectively.

In view of the grave shortcomings of the new system, a public outcry ensued, supported by a growing number of MKs from both the Labor and the Likud parties, to abolish the new Basic Law. Eventually, on March 7 2001, the Knesset voted to change the system of direct prime-ministerial elections and restore the one-vote parliamentary system of government that operated until 1996, approving a reformed version of the original Basic Law: The Government. The main modification was the adoption of the principle of constructive vote of no confidence that guarantees that the prime minister cannot be removed from office unless an alternative candidate enjoying the support of a majority of Knesset members is reelected in his place.

The Israel Defense Forces were established on May 28, 1948, by order of Prime Minister David Ben Gurion. Over the seven months that followed, the government brought the various defense organizations which served the pre-state Jewish government (the Haganah and Palmach), as well as the more extreme paramilitary groups Lehi and Etzel under the IDF’s banner.

Today the military’s status is defined by the Basic Law: The Military. This short document establishes the army and places it under the authority of the government and the Minister of Defense. It lends the power of the law to military orders, allows conscription, and declares the exclusive status of the IDF as Israel’s sole army.

The IDF is divided according to geographic region (Northern Command, Central Command, etc.); corps (infantry, air force, tanks, intelligence, etc.); and unit type. Corps are subdivided into brigades, battalions, companies, and so on, with special forces distributed throughout. The great majority of the IDF is non-combatant, serving in such roles as intelligence, medical corps, logistical support, military tribunals, communications, and education. The army additionally cooperates with the Police to manage the border patrol, a unit filled by regular conscripts as well as career officers, which patrols borders and urban areas and whose “soldiers” are also policemen with regular powers of arrest. In general, the IDF relies on a small standing army with early warning capability, and an efficient and large reserve mobilization and transportation system.

The IDF answers to the Defense Minister and to the government of Israel. Combatants are taught in their first weeks of service that the IDF, from buck private to the Chief of the General Staff, serve the people and its democratically elected officials, and that they are firmly under their authority. The Government nominates the Chief of the General Staff every four years, according to the recommendation of the Defense Minister. The Chief of Staff (currently Brigadier-General Moshe Ya’alon), nominates his own top officers, delegating authority for lesser officers to subordinates, and so on down the chain of command.

The army’s central role in Israeli social and political life places it at the center of a great deal of controversy, and few Israelis are without a strong opinion on the military. One major area of controversy is the very centrality of the army in Israeli society. Some believe that Israeli society is too militaristic and overemphasizes military values over civic values. Many others accept the centrality of the army, see it as necessary, and criticize those who question its role or its moral integrity.

Another major controversy revolves around the exemption from serving in the army granted to the ultra-orthodox. The ultra-orthodox were exempted from military service by Ben Gurion soon after the state was founded; but the increasing numbers of the exempted (from 400 in 1948 to tens of thousands today) has invited heavy criticism from many Israelis, and several recent leaders, notably including former Prime Minister Ehud Barak, made campaign promises and efforts to draft the ultra-orthodox.

The ultra-orthodox are only one focus of anger for those who demand universal service. Many reservists fail to report for duty, and even the ranks of the standing army are slightly affected by conscientious objectors or, most recently, soldiers who vow to serve the military but only within Israel proper. Several hundred soldiers and airmen who refused to fight in the recent Intifada have made headlines in Israel and abroad and provoked public discussion of the limits of conscientious objection and the place of the IDF in war and in democracy.

Israeli society has become increasingly fractured regarding the military’s missions. There was very broad consensus supporting military activity in the Independence War, the Six-day war, and the Yom Kippur war – all campaigns in which the general public felt the army stood between them and certain destruction. The Lebanon war in 1982 exposed the first major cracks in this consensus, and the role of the army in the occupied territories and in dealing with the violence between Israelis and Palestinians since the mid-1980’s further amplified the disagreements surrounding the use of military force in general, and the role and moral integrity of the IDF in particular.

There are several less prominent debates involving the IDF. One examines women’s role in combat, and while the vast majority of Israeli soldiers serve in combat support, logistical, and other non-fighting roles, several mixed-gender companies were established starting in 2000, and the Air Force has seen its first female pilots graduate. Another debate concerns Arab enlistment in the IDF. Very few Arab- or Palestinian-Israelis serve in the IDF, in large part due to old concerns about dual loyalties. While some Israelis believe Arab citizens of Israel should perform some national service, military or otherwise, Arabs largely demand equal treatment before they are ready to burden equal public responsibilities. Small groups of Bedouin Arabs, Christian Arabs, and the majority of the Druze population do serve in the ranks of the military.

The Constitutional Committee has additionally debated the army’s involvement in non-military affairs such as education, and discussed the central question of the separation of powers and the subordination of the army and its command to the civil elected bodies of government. Finally, there is growing dissatisfaction among Israelis with the close relationship between the top brass of the army and the political sphere. The vast majority of Israel’s Prime Ministers and other leaders are former generals, and chiefs of staff tend to move very quickly into the ministerial positions. The Committee has also discussed extending the minimal cooling-off period for former officers currently required before they can take up public posts.

The President is the symbolic head of the state. The President is not part of the three branches of government and has no political status. The office of the President symbolizes national unity as well as national values and norms that are not politically controversial.

Basic Law: the President of the State, which was passed in 1964, deals with the status of the President, his election, qualifications, powers and work procedures. The President is elected in a secret vote by the Knesset plenum for a single term of seven years. Every Israeli citizen is elligible to be the President of the state, but only Knesset members may suggest candidates.

The functions of the President are specified both in the Basic Law and in the custom that has developed. They include: Participation in ceremonies and official visits as representative of the state within Israel and abroad; the granting of credentials to Israel's diplomatic representatives to other countries; the acceptance of the credentials of foreign diplomats in Israel; the opening of the first session of a new Knesset; receiving recommendations from the Justice department concerning the pardoning of prisoners or the reduction of their sentences, and appointment of judges upon the recommendation of the Judges Appointments Committee.

Following national elections, the President also consults with all the parliamentary groups elected to the Knesset before assigning the task of forming a new government to the head of the parliamentary group with the best chances of forming a government. Finally, the Prime Minister must consult the President if s/he decides to dissolve the Knesset because s/he feels that there is a majority in the Knesset which opposes the government, and the government is consequently unable to function properly.

The ability to audit the state is a cornerstone of democracy. The State auditor, or Comptroller, is part of the system of checks and balances, and his or her strength is a measure of the state’s democracy. Furthermore, the Comptroller’s authority to criticize the executive branch expresses the principle that the Government must answer to the people, and not the other way around. The Comptroller greatly increases the accountability and transparency of the public administration.

Most countries of the world have an independent state auditing body designed to review the administration and activities of government and public bodies. Israel's state audit institution, called the State Comptroller's Office, was established with the State Comptroller Law in 1949, and is now defined in the Basic Law: The State Comptroller.

Israel’s auditor focuses on the activities of the executive authority, testing whether they have been carried out with economy, efficiency, efficacy, and moral integrity. The annual report is brought to the audited bodies for their response, and then submitted to the Knesset and made public. The Basic Law and the State Comptroller Law empower the Comptroller with far-reaching powers, both in terms of the bodies subject to its audit, and in terms of the depth of investigation it may carry out.

The State Comptroller is elected by the Knesset in a secret ballot for a single, seven-year term. The Comptroller answers directly to the Knesset, and may decide independently on targets of investigation. Additionally, the Comptroller must conduct any investigation requested by the Knesset plenum, the State Control Committee, or the Government. The Comptroller is independent of the Executive authority both in its budget, and in its sole power to recruit and dismiss its staff.

In 1971, the State Comptroller was given the additional responsibility of acting as Ombudsman, the address for all complaints and grievances against state bodies. Any person directly aggrieved by the state may submit a complaint to the Ombudsman, who conducts an investigation at his or her discretion, and is not bound by rules of procedure or of evidence.

The proposed constitution will establish the constitutional status of the State Comptroller and its independence. In the meeting dedicated to the State Comptroller the Committee discussed the desired scope of the audit both in terms of audited bodies and the scope of issues audited, its powers of enforcement, and its autonomy.