Settlers buoyed by referendum legislation

TOVAH LAZAROFF
11/24/2010

“This is very good news, because we know that an overwhelming majority of Israelis oppose a Palestinian state,” says Naftali Bennet.
After years of feeling betrayed by the legislative process, settlers on Tuesday quietly celebrated the Knesset’s passage late the previous night of the National Referendum Law, which they believe will make it much harder to create a Palestinian state.

“This is very good news, because we know that an overwhelming majority of Israelis oppose a Palestinian state and the evacuation of settlements,” said Naftali Bennett, the director- general of the Council of Jewish Communities in Judea, Samaria and the Gaza Strip.
Some of those on the Left, who also believe the bill was designed as a stumbling block for any peace deal, have argued that the bill was improperly legislated and could possibly be overturned by the High Court of Justice. Peace Now is studying the feasibility of petitioning the court.

Until Monday, Prime Minister Binyamin Netanyahu had to bring any peace deal that involved relinquishing sovereign Israeli territory to the Knesset, where it needed an absolute majority of 61 to pass.

But as of Monday night, according to the National Referendum Law, which Netanyahu himself supported, he would need 80 MKs to ratify any diplomatic agreement that involved giving away sovereign Israeli territory.

If the deal passed but failed to obtain 80 votes in the Knesset, under the new law the issue would go to a national referendum and would need the approval of a majority of voters to pass.

Media descriptions of the Referendum Law’s significance have focused on its impact on any agreement with the Palestinians or Syria with respect to territory that Israel has annexed, such as east Jerusalem, or where it has extended Israeli law, i.e the Golan Heights.

But settlers on Tuesday said they understood that the Referendum Law, which marks the first time the Knesset has approved the use of such a vote, had a much broader significance.

This means that almost any peace deal would have to come before the public for a vote, said Bennett, since it could be applied to any plans by the Israeli government to relinquish territory within sovereign Israel, such as swapping land in the Negev for settlement blocs.

“The passing of this law is an historic landmark event,” Bennett told The Jerusalem Post.

“We think that a decision of this magnitude has to be a decision of the people and not of local political maneuvering.”

This referendum would have to be applied to any final-status agreement and as a result it will become “an additional barrier” to prevent the establishment of a Palestinian state, settlers’ council head Dani Dayan said.

“It could prevent a disastrous decision by a weak government that has lost faith in its principles,” Dayan said.

For settlement supporters who watched two Likud prime ministers, first Ariel Sharon and now Binyamin Netanyahu, campaign on promises on which they later reneged, the Knesset vote was the first ray of light in an otherwise gloomy legislative tunnel.

News of the Referendum Law came as settlers are engaged in a fierce battle to prevent the government from approving a 90-day settlement freeze.

“It is a huge boost to morale and a practical boost to all supporters of the Land of Israel,” Bennett said.

But attorney Michael Sfard, who would represent Peace Now if it petitioned the High Court against the law, warned that the settlers were celebrating prematurely.

Any coalition that had the kind of parliamentary majority that allowed it to govern and to negotiate a peace deal with the Palestinians, “would also have the needed majority to erase this law,” Sfard said.

The law could be repealed by the Knesset in a simple majority vote, he said.

Bennett dismissed this possibility as unlikely. It would be met with tremendous public resistance, he said, because it would be tantamount to telling the voters in a democracy that they were irrelevant.

But Sfard said that there was a separate and more significant legal issue in that he believed the Knesset had overstepped its authority by passing the Referendum Law.

The Knesset has transmitted one of its most important powers to another organ, the voter, he said.

But the way to change the powers of the Knesset is not through a regular bill, but rather by amending a basic law, Sfard said.

Israel had only a partial constitution, composed of a series of basic laws, said Sfard. Those laws were set by the Knesset and have a higher normative value than regular legislation.

The Knesset could have chosen to create a basic law for a referendum that involved relinquishing territory, he said, but it opted not to do so; instead it passed the Referendum Law as a piece of regular legislation.

But in so doing, it violated Basic Law: The Knesset, which gives the legislature sole power to have final say on changing Israel’s territorial application of laws.

The notion of a referendum is “foreign to our political culture,” he said.

“The only reason it was passed was to put more barriers in front of any potential peace agreement. It was tailored to political considerations and not to constitutional ideas and ideals. This is not how constitutional work is done,” Sfard said.