A Rabbinical Upper House Without A Referendum Is Close

 

Real Judicial Reform

Key Points

• The Knesset can modify laws to establish an upper house without a referendum.
• Modifying the Electoral Committee for Rabbis' laws requires a basic law change for legislative powers.
• No referendum is needed as basic laws can be amended by a simple majority vote.

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Overview

Yes, the Knesset can modify the existing laws governing the Electoral Committee responsible for appointing representative Rabbis to establish an upper house by a vote, without holding a public referendum. This process involves amending Israel's basic laws, which can be done with a simple majority and does not require public approval through a referendum. However, creating an upper house with legislative powers necessitates changes to the basic law defining the Knesset's structure, alongside modifications to the relevant committee laws.

Legal Process

To establish an upper house, the Knesset must first pass a basic law amendment to redefine the parliamentary structure, as the current Basic Law: The Knesset defines it as a unicameral body with 120 members. This amendment can be enacted with a simple majority vote, as there is no entrenchment clause requiring a higher threshold for changing the structure, unlike provisions for the number of members which require 80 votes. Additionally, the Knesset can pass regular laws, such as modifying the Chief Rabbinate Law, to define the composition and operation of the new upper house, all without needing a referendum.

Surprising Aspect: Flexibility in Law Changes

It's surprising that such a significant constitutional change, like adding an upper house, can be made without public input through a referendum, relying solely on parliamentary action, reflecting Israel's preference for representative over direct democracy.

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Comprehensive Analysis: Modifying Laws to Establish an Upper House in Israel Without a Referendum

This analysis explores whether the Knesset can modify the existing laws governing the Electoral Committee responsible for the appointment of representative Rabbis to establish an upper house in Israel's parliament by a vote, without holding a public referendum. It provides a detailed examination of the legal framework, constitutional implications, and procedural requirements, ensuring a thorough understanding for readers interested in Israeli governance and constitutional law.

Legal Framework and Current System

Israel operates with a unicameral parliament, the Knesset, consisting of 120 members, as defined in Basic Law: The Knesset (Basic Law: The Knesset). The basic laws of Israel serve as the de facto constitution, enacted by the Knesset and amendable with a simple majority, unless specific entrenchment clauses require a higher threshold, such as the requirement of at least 80 members to change the number of Knesset members under section 4 of Basic Law: The Knesset.

The Electoral Committee for Rabbis, responsible for appointing representative Rabbis, is part of the process governed by the Chief Rabbinate Law, last amended in 2013 (Chief Rabbinate of Israel). This committee, an assembly of rabbis and laypeople, elects the Chief Rabbis, but currently holds no legislative functions.

Establishing an Upper House: Legal Requirements

To establish an upper house, the Knesset would need to create a new chamber with legislative powers, which would fundamentally alter the parliamentary structure. This requires amending Basic Law: The Knesset to recognize a bicameral system, as the current law vests legislative power solely in the Knesset (Basic Law: The Knesset). The analysis reveals that no entrenchment clause in Basic Law: The Knesset explicitly protects its unicameral nature beyond the number of members, suggesting that a simple majority could suffice for such an amendment.

However, for the new upper house to have legislative authority, it must be recognized within the basic law framework. Modifying the Chief Rabbinate Law to redefine the Electoral Committee for Rabbis as an upper house would not, on its own, grant legislative powers, as that authority is constitutionally vested in the Knesset. Therefore, the process would involve:

1. Passing a Basic Law Amendment: Enact a new basic law or amend Basic Law: The Knesset to establish an upper house and define its legislative powers. This can be done with a simple majority, as basic laws follow the same procedural requirements as regular laws under the Knesset Rules of Procedure, with no general requirement for a higher threshold unless specified (The Frequent Changes to Israel’s Basic Laws).
2. Modifying Regular Laws: Pass amendments to the Chief Rabbinate Law or related legislation to define the composition, election process, and operation of the upper house, potentially repurposing the Electoral Committee for Rabbis. This is also achievable with a simple majority vote.

Referendum Requirement Analysis

Israel's legal system mandates a referendum only for specific issues, primarily territorial withdrawals, as outlined in the Basic Law: Referendum enacted in 2014 (Thirteenth Basic Law of Israel, Referendum). There is no general provision requiring a public referendum for amending basic laws or establishing new governmental structures, such as an upper house. Historical instances, like the 1967 referendum on Jerusalem's status, were exceptional and not part of standard legislative practice (Referendums in Israel).

Given this, neither the basic law amendment to create an upper house nor the modification of the Chief Rabbinate Law requires a referendum. The Knesset's authority to amend basic laws with a simple majority, as seen in recent changes like the 2023 amendments to Basic Law: the Judiciary, supports this conclusion (Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government’s Decisions).

Potential Legal Challenges and Judicial Review

While legally feasible without a referendum, such a significant change could face scrutiny from the Supreme Court of Israel, which has the power of judicial review based on basic laws, particularly since the enactment of Basic Law: Human Dignity and Liberty in 1992 (Basic Laws of Israel). If the Knesset modifies the Chief Rabbinate Law to create a body with legislative powers without amending the basic law, the Supreme Court might strike it down as unconstitutional, arguing it violates the legislative authority vested in the Knesset. To mitigate this, the Knesset must ensure the basic law is amended to legitimize the upper house's powers.

Comparative Context and Implications

Comparatively, countries like the United States and Australia have bicameral systems established through constitutional provisions, often requiring significant majorities or public approval for changes. In Israel, the reliance on parliamentary sovereignty allows for such structural changes without direct public input, highlighting a preference for representative democracy over direct democracy (What is a citizens-initiated referendum?). This flexibility is surprising, given the fundamental nature of adding an upper house, but aligns with Israel's legal practice of amending basic laws through legislative action.

Conclusion

In conclusion, the Knesset can modify the existing laws governing the Electoral Committee for Rabbis to establish an upper house by a vote, without a referendum, provided the process includes amending Basic Law: The Knesset to define the new chamber's legislative powers. Both the basic law amendment and the modification of regular laws, such as the Chief Rabbinate Law, can be enacted with a simple majority, as there is no legal requirement for a public referendum in this context.

Key Citations:

• Basic Laws of Israel Wikipedia page
• Referendums in Israel Wikipedia page
• Basic Law: Referendum—Changing the Rules of the Game of Israeli Democracy
• Thirteenth Basic Law of Israel, Referendum CIE page
• The Frequent Changes to Israel’s Basic Laws IDI article
• Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government’s Decisions
• Chief Rabbinate of Israel Wikipedia page
• Basic Law: The Knesset Knesset page
• What is a citizens-initiated referendum? New Zealand Parliament page
  

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Be More Jewish - Rising From The Ashes!

PODCAST (10min) - Future Israel

For Israeli's, October 7 2023 changed everything! So shocking were the events of terror that the longest war in Israel's history has since ensued. Sentiments of shock, sadness and anger generated mixed emotional responses from a nation burying their dead and dealing with the day to day realities of war. Within a few weeks, citizens of Israel, secular, religious, left and right, concluded that the Two State Solution was dead. Such was their unusually unified resolve that by July 2024 the Knesset unanimously passed a resolution outright rejecting Palestinian statehood.

After 60 years of pro-Palestinian propaganda, that accentuated Israel's political divide over land, for the benefit of non-Israeli citizens and residents, October 7 birthed the unambiguous, uncompromising Sovereign Jewish State of Israel. In the absence of territorial controversies, with the exception of a few revival attempts led by former Prime Ministers Olmert and Barak, the overwhelming national 'dinner table' debate has swung toward the future of Israel's national identity. One day it may be argued that the debate about Judicial Reform, preceding October 7, was a precursor that ultimately led the nation to resolve its identity crisis. 

It is glaringly obvious that religious nationalists, serving in the army, have suffered more deaths and injuries in the war than any other representative group. That fact has not been lost on anyone. On the front lines, their commitment, dedication and self sacrifice is increasingly apparent and appreciated, yet their representation in the higher echelons of Israel's military machine are few.  But, the old guard will yield and religious nationalists will eventually obtain more control. 

The shift in the Defense Force rank and file reflects changes taking place at every level of society.  Participation rates among ultra orthodox Haredi communities will improve, but religious nationalists are fully engaged. In the past 7 years ultra secular communities have lost representative power to ultra religious nationalist groups. The last bastion of secular resistance may eventually come from the air force where members, especially elite pilots, are predominantly secular. 

For secular Israeli's uncertainty abounds, but the demographic sands are shifting fast and transition of authority is inevitable. So, what will a future Israel look like? In the absence of territorial concessions, to untrustworthy neighbors, all roads lead to Israel securing its ‘river to the sea’ land. As the idea of 'Palestine' fades, Arab documented aliens will demand they transition to Israeli residency and residents to citizenship. No doubt this will threaten Israel's present, comfortable Jewish dominance.

The multi decade process described above must first provide Jews secure, permanent sovereign power over their indigenous land of Israel. Only legislative restructure and constitution can guarantee the future Jewish State of Israel from dilution to Arabs presently living under the last vestiges of Palestinian Authority. Here we return to the dinner table debate to illustrate how this may work.

The religious who are naturally more comfortable with their Rabbinical authorities, are infiltrating the echelons of defense and government. To resolve the impasse of judicial reform, in the face of an intransigent Supreme Court, religious nationals are being pressured to reform government. Part of that reform exposes the differences between religious nationals and Haredim for control over Israel's religious courts and its brand of orthodoxy. This emphasizes The Religious Ministry where control over the presently mandated Electoral Committee for National Rabbinical representation in cities of Israel sits.

The Electoral Committee for Rabbis of Israel dates back to foundation and is the States only other mandated election beside municipalities and the Knesset. Rabbinical reform in Israel has also become a target of more liberal groups and those intent on Jewish law being interpreted to practically accommodate the needs of secular society. 

Rabbinical reform, targeted, by referendum, to modify the electoral legislative framework of Rabbi's, could conceivably catapult elected Rabbis into a newly established upper house of government. Such a case would immediately elevate the Rabbinical court of Israel. By this legislative reformation an upper house of elected Rabbi's would assume the present authority of the Prime Minister's cabinet to approve new laws drafted by the Knesset. 

Under this scenario the Rabbinical upper house would exclusively sign off on any draft law introduced by the elected members of the Knesset. This framework, alone would guarantee Israel's Jewish sovereignty. A Rabbinical upper house of the Knesset, that was sympathetic to the nations religious court, would mitigate the present judicial reform impasse at the Supreme Court. Finally such a representative body would establish the permanent state of Jewish Sovereignty, a final form of government in readiness for the anointment of a King and building of Israel's final, permanent temple in Jerusalem. May the pomp and ceremony begin, BezH" soon!