Evelyn Gordon

Analysis from Israel

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

The best-known example is the ill-fated experiment with directly electing the prime minister in the 1990s, which was repealed a decade later. The initial proposal, which also called for directly electing some Knesset members, might have worked. But the hybrid ultimately adopted, under which Israelis voted for an individual as prime minister but a party for Knesset, encouraged many people to split their votes, leaving the prime ministerial candidates’ parties decimated. Prime ministers therefore had to create fragmented coalitions in which their own parties were often a minority, making it harder to govern.

A less known but particularly salient example is a seemingly innocuous reform enacted in 2016. The rule until then was that after an election, the longest-serving Knesset member would temporarily become Knesset speaker until a new government was formed, after which the government would choose a permanent speaker. Under the amendment, the old speaker simply stayed on until a new government was formed and chose a new speaker.

The change seems both trivial and sensible. Why bother with a temporary speaker for a mere few weeks—someone who doesn’t yet know the ropes and will be gone before he learns them—when an experienced speaker could just serve a few weeks longer?

Yet this picayune change ended up producing the worst constitutional crisis in Israel’s history. This past March, a new Knesset majority wanted to elect a new speaker to further passage of its own hasty amendments to the Basic Laws. The existing speaker wanted to postpone the election until the new government’s composition became clear because once elected, a new speaker is virtually impossible to replace, and an opposition speaker could stymie all the government’s work. This dispute led to the High Court of Justice riding roughshod over the separation of powers by not only creating a new constitutional arrangement in which two speakers would serve simultaneously (though one would be limited to running the vote for a new permanent speaker), but even dictating the second speaker’s identity.

All of this would have been avoided had that seemingly trivial amendment not been passed: The opposition wouldn’t have needed to elect a new speaker, since the old speaker would immediately have been replaced with a temporary one. And there would have been no risk of a speaker in permanent opposition to the government, because a new government would have been able to replace the temporary speaker.

In other words, this seemingly pointless provision embodied a careful balancing act between a new majority’s desire to govern and a government’s need to function, and its elimination sparked a constitutional impasse.

The amendments the new unity government is making to the Basic Laws—meant to create complete parity between Netanyahu and Gantz, as well as ensure that the prime ministry rotates between them in another 18 months—are much more far-reaching. For instance, both the prime minister (initially Netanyahu) and the vice premier (Gantz) will appoint the same number of ministers, and neither can fire the other’s appointees. If either one dissolves the agreement, the other automatically becomes premier. But if one is barred from serving for reasons beyond his control (excluding specified reasons such as serious illness), the second may not become premier, effectively forcing new elections. And so on.

To be fair, some of these grotesqueries stem from Israel’s rampant judicial activism. Specifically, that last-named provision is motivated by the High Court’s explicit threat to disqualify Netanyahu due to his indictments. Under current law, the vice premier automatically replaces an incapacitated prime minister, meaning Gantz would have become prime minister for the entire term, leaving Netanyahu’s bloc—more than two-thirds of the unity government’s members—out in the cold.

Yet many provisions simply reflect the deep distrust between Netanyahu and Gantz. And while some will expire automatically when this Knesset’s term ends, others won’t, planting potential constitutional time bombs for future governments.

Even when alterations to a system of government are carefully thought out, exhaustively debated and not tailored to specific personal needs, history proves that they sometimes fail spectacularly. The risks are all the greater when changes are rammed through hastily, with no time for thought or debate, merely to serve specific political circumstances.

Thus even if these changes are necessary in today’s unusual political circumstances, they must all be carefully reconsidered immediately after the next election, and probably repealed. Because any country tinkers with longstanding constitutional arrangements at its own peril.

This article was originally syndicated by JNS.org (www.jns.org) on April 29, 2020. © 2020 JNS.org

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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