Issues in Implementing Referendums in Israel: A Comparative Study in Direct Democracy
Garrett, Elizabeth, Chicago Journal of International Law
In 1994, Israeli Prime Minister Yitzhak Rabin promised that any peace agreement with the Syrians, which would return some or all of the Golan Heights to Syria, would be submitted for the people's approval in a national referendum. During his campaign in 1999, Ehud Barak reiterated that commitment and promised that any final-status agreement with the Palestinians, which would affect the sovereignty of Jerusalem as well as resolve other controversial issues, would also be the subject of a referendum. During the Camp David summit in the summer of 2000, Barak negotiated as his government fell apart at home, and he stated frequently that any deal with Arafat would be ratified by a vote of the people. Before the recent outbreak of violence and election of a new prime minister in February 2001, peace agreements seemed possible in the relatively near future, so Israeli politicians turned their attention to the mechanics of a referendum vote. Israel is one of the few democratic countries that has never held a nationwide referendum, and therefore it has not set up a legal framework for these votes.
Ideally, a structure for a popular vote would be implemented before a government announced a decision to submit a particular issue to a referendum. Once a specific issue becomes the subject of direct democracy, the stakes become higher because one side will often be benefited by one set of implementation decisions and the other side disadvantaged. Moreover, rules that are shaped to accommodate interests in a particular ballot question may prove ill suited for referendums that are held in the future but are unanticipated at the time the framework is established. For example, the United Kingdom ("UK"), after a series of ad hoc referendums conducted under differing rules that appeared (and probably were) largely a result of political factors rather than of principle, appointed a commission (the "Nairne Commission") to establish a set of electoral regulations that could be used to govern all future referendums! The United Kingdom discovered, as have many countries and as Israel may, that a nationwide referendum is seldom a one-shot experience; once used, popular elections usually remain as part of a hybrid democratic system with elements of representative democracy and elements of direct democracy.
In Israel's case, however, the framework for direct democracy will be developed in the shadow of highly emotional issues that will be its first subjects. Thus, many of the key issues of implementation will necessarily be resolved on the basis of political factors relating to the peace agreements, even if the referendum law is phrased broadly to provide rules for other popular elections. When the Knesset deliberates enacting a basic law relating to referendums, its members should consider the experience of other democracies in light of Israel's unique political situation. In this article, I will discuss three kinds of implementation issues and suggest possible resolutions. First, rules must determine the effect of the popular vote. Is the referendum binding or advisory? Is there any real difference between the two? What sort of vote is required for a referendum to pass? Will a certain threshold of the total electorate, in addition to a threshold of those voting in the election, be required for passage?
Second, decisions affecting the information that voters receive about the referendum must be made, although they may be less important in the context of a salient, infrequent, high-profile nationwide referendum than in the United States context where a single ballot in a state with direct democracy may include several initiatives and referendums. Nevertheless, structuring the information environment surrounding the campaign and the vote is a crucial task. How will the question be worded on the ballot, and what information will appear on the ballot itself,. What sort of official voter information booklets) will be sent to voters? …