Analysis from Israel
Israel’s High Court created the problem that drove tens of thousands of voters into Benjamin Netanyahu’s arms. The result could be a government willing to enact legal reforms that the court bitterly opposes.

Though Israel’s final March 2 election results still aren’t in, one thing is clear: Prime Minister Benjamin Netanyahu did significantly better than he did in September, and his bloc is close to having enough seats to form a new government. That’s a far cry from saying he’ll actually be able to form one. But if he does, the legal system will be hoist with its own petard—namely, repeated court rulings that, in defiance of the actual law, barred lame-duck governments from doing almost anything of importance.

To understand why, it’s first necessary to understand how Netanyahu’s bloc gained three to four seats since September, all of which went to his own Likud party. Granted, many Israelis either don’t believe the indictments against him or don’t consider them serious enough to justify ousting someone they consider an excellent prime minister, but all those people also voted for him in September.

The tens of thousands of Israelis who switched their votes on March 2 didn’t do so because they used to think Netanyahu was guilty but are now convinced he’s innocent, or because they used to think Netanyahu was a lousy prime minister but are now convinced he’s brilliant. Rather, most are former Netanyahu supporters who grew disgusted with him—enough that they either stayed home or voted for his rival in September.

But they’re even more disgusted by Israel’s third election of the past year and the ongoing inability to form a new government; they’ve become convinced that even a bad government is better than no government. And the anti-Netanyahu bloc had no realistic chance of ever forming a government because too many of its constituent parties refuse to sit at the same cabinet table either with each other or with any of the parties that could potentially be wooed away from Netanyahu. Thus the only way to increase the chances of a government being formed this time around was to give Netanyahu’s bloc the few extra seats it needed.

But why would these voters care so much about having a new government? After all, the country is basically functioning under Netanyahu’s lame-duck government, which remains in office until a new government is formed despite having lost its parliamentary majority last year.

Unlike in America, there’s no such thing as a government shutdown in Israel. Public services continue functioning even without an approved budget because they’re automatically funded every month to the tune of one-twelfth of the previous year’s budget. The army still defends the borders and fights terror. Netanyahu still travels the world expanding Israel’s diplomatic relations.

Nevertheless, there are many things a lame-duck government cannot do. It can’t make appointments, so senior civil-service posts have been empty for a year. It can’t pass a new budget or allocate any funding that wasn’t included in the previous year’s budget, so vital new programs—like the army’s five-year development plan and desperately needed infrastructure projects—have gone unfunded. And vital old programs, including pilot projects to help Israel’s neediest, have shut down because their funding was only approved for a year and a lame-duck government can’t renew it. The government also can’t address the yawning deficit by cutting spending or raising taxes.

To be clear, Israeli law doesn’t actually prevent a lame-duck government from doing any of this. Moreover, as the High Court of Justice admitted in a 2001 ruling, this wasn’t an oversight; the Knesset considered this issue during the state’s early years, but ultimately accepted a public commission’s recommendation against restricting lame-duck governments, lest such restrictions hamper their ability to act in an emergency.

But the court, always convinced that it knows better than the legislature and scornful of that quaint democratic principle which holds that law should be made by elected legislators rather than unelected justices, decided decades ago to overrule the Knesset on this issue. True, lame-duck governments are formally empowered to do anything, it declared, but under other High Court rulings dating to the 1980s, no government action is legal unless the court also deems it reasonable, regardless of what the law says. And the justices, together with the successive attorneys general responsible for enforcing their dictums, have deemed a wide range of actions by lame-duck governments unreasonable.

To understand the absurd lengths to which this has been taken, consider one case now before the court: The government recently created a public commission to probe the Justice Ministry’s handling of police misconduct, but the attorney general nixed it, saying a lame-duck government has no such power.

Granted, the timing was political; Ethiopian Israelis, a community Netanyahu sought to woo, are furious with the ministry for what they see as its tolerance of police brutality against them. But so is every other constituency in Israel—left-wing, right-wing, Arab, ultra-Orthodox, you name it. Excluding the police and Justice Ministry staffers, there’s a wall-to-wall consensus that the ministry is soft on police brutality. So why bar a lame-duck government from a probe that most Israelis consider long overdue?

Adding insult to injury, the court, as always, is politically biased in enforcing its dictum. Back in 2001, for instance, it deemed it reasonable for Prime Minister Ehud Barak’s lame-duck government to reward PLO chairman Yasser Arafat for launching the Second Intifada by offering him most of the West Bank, the Gaza Strip and half of Jerusalem, despite overwhelming public opposition. But doing something all Israelis consider essential, like earmarking funds for new hospitals or roads? Absolutely not.

Had the court simply upheld the law and allowed lame-duck governments to exercise their full powers, Israel would not have accumulated such a long list of unaddressed burning issues over the past year, and a critical mass of anti-Netanyahu voters wouldn’t have concluded that any government—even one headed by a man under indictment—was better than none at all. In other words, with its own hands, the court created the very problem that may now result in a government willing and able to enact legal reforms that the court itself bitterly opposes.

Reasonable people can disagree over whether that outcome would be good or bad for Israel. But it would undeniably be poetic justice.

This article was originally syndicated by JNS.org (www.jns.org) on March 4, 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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