This week, Israel’s “center-left” bloc of political parties formally jettisoned former Israeli Chief Justice Aaron Barak’s constitutional vision and instead embraced the understanding of parliamentary sovereignty most commonly associated with the right. For decades, they have claimed that democracy means not the rule of the majority, but rather the supremacy of an unwritten system of norms, drawn from reason and often the usage of countries like the United States, that limits the power of the Knesset.
The left’s new legal proposals show that they now believe there are no implicit constitutional limitations on majority rule—at least while they have the majority.
What drove them to this massive reversal of principles is quite simple: an all-consuming desire to end Benjamin Netanyahu’s rule.
This week, the opposition to Netanyahu introduced a series of bills aiming to change Israel’s electoral and political system. All have one thing in common: they are narrowly written to do little more than bar Netanyahu from forming a government. One bill, for example, allows the Knesset to remove a prime minister who is under indictment.
But the most problematic and illegitimate of the measures introduced by Gantz’s supposedly “democratic” coalition is a bill that would bar Knesset members under indictment from forming a government.
By passing this bill now—which would apply to the current coalition formation process—Gantz and his allies seek to disqualify one of the two main candidates for the premiership, making Gantz the next prime minister by default.
It may be tempting for opponents of this bill to say that it is unconstitutional—but they would be wrong. The proposed legislation is certainly offensive to principles of fair play and democracy, but that does not make it unconstitutional, it just makes it a bad law.
The bill does however violate basic principles of democratic governance. In Israel, voters do not cast their ballots for candidates but for parties, with the leaders of major parties holding themselves out as de facto prime ministerial candidates.
In short, Israelis vote on which party or coalition should form the government. No election results in an outright winner, and thus the subsequent government-formation period is effectively part of the electoral process. Indeed, if government formation fails, new elections are held, as has happened in Israel three times in the past year. Thus the process of forming a government is in fact part of the electoral process.
What Blue and White’s bill would do if passed into law is change the rules of the electoral process, in the middle of that process. When voters went to the polls a few weeks ago, those who voted Likud did so with the understanding that Netanyahu would be the prime minister in a Likud-led government if the party won; this was instrumental to their vote. Indeed, that fact may also have been instrumental to Blue and White voters, many of whom support that party purely to end Netanyahu’s tenure. Had this law been in place during elections, they may well have voted Likud.
The rationale presented for the bill makes explicitly clear that its purpose is to negate the electoral choice of the Israeli people.
The bill explains that an indicted prime minister may be suspect, may have conflicts of interest and other kinds of problems. Those are all valid reasons the electorate might choose to vote against such a candidate. But in this election, Netanyahu got the most votes, while under indictment. The bill in effect says voters did not give sufficient weight to the indictment. Perhaps the voters should have reacted differently, but this bill seeks to substitute the new Knesset’s judgment for theirs.
To be sure, there is no problem with a law that prohibits an indicted person from forming a government after the next elections. Laws about the qualifications of officeholders are commonplace. In such a case, voters in an election know what they are getting. But this bill is being advanced immediately after an election and before a government is formed. It is an attempt to change the rules in the middle of the game. This is interference in the democratic process.
Imagine if a narrow right-wing coalition had passed a law after the last election saying that to protect the separation of the military and civilian realms, no former general can form a coalition.
In the United States, courts have held that qualifications on office-holders, such as term limits, can only be applied prospectively—that is, the legislature cannot kick out a three-term legislator by passing a three-term limit.
But in Israel, the anti-Bibi law is not unconstitutional—because Israel has no constitution. The only constitutional texts are “Basic Laws,” none of which prohibit unprincipled or undemocratic legislation. Under the Israeli system, the Knesset can do whatever it wants so long as it does not violate the Basic Laws; it can change the Basic Laws, too.
Yet much of the so-called “rule of law” that has been trumpeted by the left consists of the Supreme Court’s ability to declare laws unconstitutional simply because they violate some general principle. Indeed, even Basic Law: Israel as the Nation-State of the Jewish People is being challenged for violating principles that do not exist in any Basic Law. The Supreme Court has repeatedly invoked general principles of law to strike down legislation.
The bill barring an indicted MK from forming a government violates one of the most common general principles of law: the rule against retroactive legislation. But in the United States, that principle is written in the Constitution. In Israel, it is not—and Gantz has discovered that if something is not explicitly forbidden, it is permitted.
This is, of course, a complete repudiation of his consistent line that Netanyahu threatened the rule of law by insisting that judges follow only written laws, not general principles they pull out of the air. With this new bill, the entire Israeli left has come around to the right’s legal position. The best thing the right can do is simply announce victory on the fundamental constitutional issues and refuse to challenge the law in court.
Professor of Law Eugene Kontorovich is one of the world’s preeminent experts on universal jurisdiction and maritime piracy, as well as international law and the Israel-Arab conflict.
This article first appeared in Israel Hayom.
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