Reprinted From The Jerusalem Post of March 7, 2000
By Evelyn Gordon
How the Justice Ministry managed to mislead
us with the
truth. (The writer comments on current affairs.)
If there were an annual prize for the most misleading use of the truth, the document put out by the Justice Ministry last week on the use of referenda worldwide would win hands down. Based on its study of referenda in 22 countries, the ministry loudly proclaimed that almost no western democracy demands a special majority for a referendum on territorial concessions to pass. This is the truth.
What the ministry's document somehow neglected to emphasize, however, is that almost all western democracies do demand a special majority for territorial concessions. But unlike in Israel, where international agreements require approval by at most 61 of its 120 MKs, most democracies choose to demand their special majority at the level of the legislature.
Consider a few examples from the Justice Ministry's list of states that demand only a simple majority in referenda. Australia, for instance, does indeed demand only a simple majority in any referendum. But it also demands that the proposal in question be approved by two-thirds of its state legislatures. Austria demands a simple majority in the referendum, but a two-thirds vote in the lower house of parliament. Sweden, along with a simple majority in the referendum, demands that the proposal in question be approved by two consecutive parliaments. Switzerland requires a simple majority in the referendum plus approval by the legislatures of 12 of its 22 cantons.
Spain, which is also on the ministry's list, has the most stringent approval process of all: In addition to a simple majority in the referendum, it requires a two-thirds vote in both houses of parliament by two consecutive parliaments.
Nor was this the only way in which the ministry's report was misleading. The report also trumpeted the fact hat even in states which do demand approval by a certain percentage of eligible voters rather than a simple majority of those who vote, the threshold is generally less than the 50 percent stipulated in the opposition bill that passed its preliminary reading in the Knesset last week - against which the ministry's report was aimed. Again, this is the strict truth: Most of the countries that use this system do indeed require approval by 40% or fewer of their eligible voters.
What the ministry neglected to mention, however, is that all of these are countries where voter turnout is traditionally very low - 50% to 60% or even lower. With a voter turnout of 60%, requiring approval by 40% of eligible voters is the equivalent of requiring approval by 67% of those who actually vote. In Israel, however, voter turnout is consistently in the neighborhood of 80% - an extraordinarily high level by western standards. Therefore, requiring approval by 50% of eligible voters is the equivalent of requiring a "yes" vote from 63% of those who actually cast a ballot - a margin no greater, and sometimes even lower, than that demanded by western countries which use the 40% rule (such as Denmark).
Indeed, in a country where voter turnout is as high as Israel's, demanding approval by only 40% or fewer of the eligible voters would produce an absurd result: The referendum could pass with the support of less than 50% of those who actually cast their ballots.
THE simple fact that the ministry's many truths were designed to conceal is that almost all western democracies demand a special majority for hard-to-reverse decisions with far-reaching consequences, such as territorial concessions - not because they are "racist" or interested in negating the votes of a religious or national minority, but because they deem it divisive to make such decisions by a razor-thin majority.
Thus the only serious argument against the opposition bill that passed last week is not that "other democracies don't do that" - most of them do. Rather, it is that the particular mechanism chosen by the bill may not be the best one for Israel. This is because an unusually high percentage of eligible Israeli voters - around 10 percent - are permanent overseas residents. And since Israel, with a few exceptions, does not permit absentee balloting, a "50 percent of eligible voters" rule means that this large block of voters will automatically be counted as votes against.
It would therefore be preferable to require a special majority in parliament - which is also the most common practice in other western countries. A two-thirds majority in parliament would be far from an insurmountable barrier: The peace agreements with both Egypt and Jordan were approved by even wider margins. But the Knesset, for inscrutable reasons of its own, prefers to shift the burden of the special majority onto the referendum. And, as the collective wisdom of the rest of the democratic world teaches, this is far better than no special majority at all.
(c) Jerusalem Post 2000