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The best-known example is the ill-fated experiment with directly electing the prime minister in the 1990s, which was repealed a decade later.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 ( on April 29, 2020. © 2020

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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