Amid Israel’s aggressive attempts to contain the coronavirus pandemic, the country’s democratic system has been thrown into an unprecedented and multilayered crisis, now embroiling the executive, legislative and judicial branches of its government.
For over a year, Israel has operated without a parliamentary majority after three successive elections in which neither incumbent Prime Minister Benjamin Netanyahu nor challenger Benny Gantz were able to form a coalition.
At the outset of the impasse are multiple corruption charges leveled at Netanyahu by Attorney General Avichai Mandelblit. A trial was scheduled to commence this past week but was postponed by two months as the Netanyahu-led caretaker administration declared a state of emergency, placing the entire country into partial lockdown and forcing the court system into a mode of reduced operation.
The tactics used to identify and compile initial evidence against Netanyahu and to recruit state witness testimony have been called into question, as have the unprecedented nature of the charges themselves. A guilty verdict is far from automatic.
Netanyahu refuses to step down in spite of the indictments. Continuing to serve as prime minister under indictment is itself an unprecedented scenario, as is the embattled prime minister’s subsequent failure to form a new coalition after three successive elections.
Unsuccessful coalition negotiations
Netanyahu continues to govern while sitting precariously three seats short of a majority. Several former allies outright refuse to sit in a government with him, following a third round of polls in which the electorate voted overwhelmingly in favor of Netanyahu and his natural bloc of right-wing and religious allies, by a margin of 12 seats and several hundred thousand votes, over Gantz and his center-left bloc.
However, the presidential mandate to form a government and become prime minister rests with Gantz, who received the recommendation of 61 out of 120 Knesset members. Yet, the parties that recommended Gantz, including a 15-seat Joint List of Arab parties, refuse to sit together, making it likely that Gantz will pass the mandate back to President Reuven Rivlin, who will then assign it once again to Netanyahu.
Netanyahu, who received only 58 recommendations, is similarly unlikely to form a coalition, which would likely propel Israel into yet a fourth consecutive national election. That is, unless a unity government is formed between Blue and White and Likud—a scenario which is now growing less and less likely.
Despite being thus far unable to form a formal parliamentary majority, Gantz is trying to wrestle control of the parliament from Netanyahu. His Blue and White Party, together with his new ally, the Yisrael Beiteinu Party led by Avigdor Lieberman, seek to advance a series of retroactive bills, each specifically aimed at preventing Netanyahu from forming a new coalition.
The proposed bills would reverse an explicit Israeli law that permits a prime minister to continue serving in office while under indictment, and even through a conviction and until all formal appeals processes have been exhausted. One of the bills seeks to impose a two-term limit on the premiership, which would automatically disqualify Netanyahu.
In order to advance the personal and retroactive legislation in the absence of a majority coalition, Blue and White seeks to immediately replace the tenured and generally well-respected Knesset speaker Yuli Edelstein, the No. 2 member of Netanyahu’s Likud Party. It is the Knesset speaker who oversees parliamentary procedures and brings legislative bills up for votes.
In a transitional government following an election, Israeli law explicitly gives the posts of prime minister and Knesset speaker to the incumbents, until a new coalition government is formed.
Yet, Blue and White has claimed that it can force a vote to replace the speaker by relying on its informal 61-member majority. Such a move would be unprecedented. In Israel’s 72-year history, a speaker has never been appointed prior to the formation of a formal coalition.
According to Knesset bylaws, “The Speaker shall run the affairs of the Knesset, represent it externally, uphold its dignity, maintain order during its sittings, and oversee the observance of its rules of procedures. He shall preside over the sittings of the Knesset and run them, determine the results of votes, and in addition fulfill any task assigned to him by law.”
Furthermore, the incumbent speaker is not obligated by Knesset bylaws to bring up for a vote the assignment of a new speaker until just before a coalition is formally established:
“The Speaker shall be elected no later than the date on which the Knesset convened for the purpose of establishing the Government, as stated in Article 13 of Basic Law: The Government. Should the elections of the Knesset Speaker be scheduled for the same date set as the session convening for the purpose of establishing the Government, the Speaker shall be elected first.”
Supreme Court challenge
When Edelstein refused to heed Blue and White’s motion to call a premature vote to replace him, Blue and White petitioned Israel’s High Court.
The High Court could have refused to hear the petition on the grounds that any ruling on clear legislative bylaws might overstep judicial boundaries. Yet the court quickly accepted the petition.
During the hearing, Knesset Legal Adviser Eyal Yinon offered an opinion explicitly objecting to any motion to replace a speaker prior to the formation of a coalition, stating that such an unprecedented move “could harm democracy.”
He noted that the speaker must represent the political faction leading a coalition in order for the parliament to function properly.
“We’ll have a crisis every other day of opposition factions trying to foil the government. It will be impossible,” Yinon told the court, adding that appointing a speaker before the creation of a coalition would essentially be “planting a bug in the system, and that too constitutes harm to governance.”
Yinon can be viewed as impartial. In January, he issued a key legal opinion that helped ensure Netanyahu would not receive parliamentary immunity ahead of his scheduled trial.
The court deliberated for barely 24 hours before filing a unanimous five-justice ruling that Edelstein must schedule a vote to replace himself later this week.
In its ruling, High Court President Esther Hayut rejected Yinon’s legal opinion as well as the latitude explicitly granted to Edelstein under Knesset bylaws, stating that, “The continued refusal to allow the Knesset to vote on the election of a permanent speaker is undermining the foundations of the democratic process.”
Ironically, the head of the judicial branch added that Edelstein’s refusal to hold a vote before the legally prescribed deadline “clearly harms the status of the Knesset as an independent authority and the process of government transition, all the more so as the days pass since the inauguration of the 23rd Knesset.”
She noted that the Knesset “is not a cheerleader for the [executive branch of] government,” and that “the Knesset is sovereign.”
Reinforcing its reputation as an activist court, Hayut closed her remarks stating that “there is no escaping the conclusion that in the circumstances created, this is one of those exceptional cases where this court is required to intervene to prevent a violation of our parliamentary system.”
Edelstein had warned the five-justice panel just prior to the ruling writing, “I won’t agree to ultimatums. I can’t agree because this means that the Knesset’s agenda will be determined by the High Court and not by the Speaker of the Knesset, who is assigned this role.”
He noted that “a permanent Knesset chairman was never elected at a time when there was such great uncertainty as to the composition of the future coalition,” and that it would be irresponsible to force such a contentious vote as the government is working around the clock to contain the coronavirus crisis.
He added that “due to the special circumstances, at this stage I find it difficult to specify an exact date, but I intend to place the issue on the Knesset’s agenda when the political situation becomes clear. Hopefully this will happen in the shortest possible time.”
In a further rejection of the judicial branch’s ruling on the affairs of the legislature, Edelstein wrote that “this court does not exercise its authority in such a case but in special cases where there is a concern about harming the fabric of democratic life,” adding that, “Postponing the date of the election of the Speaker will not hurt the foundations of Israeli democracy, but the contrary.”
It remains unclear what will happen should Edelstein refuse to implement the court’s ruling.
Blue and White’s democratic mandate
Meanwhile, Blue and White has a simple and precedented democratic mechanism to assign a Knesset speaker, pass laws and inaugurate a new prime minister, that does not involve reinterpreting long-established Knesset bylaws or petitioning the High Court.
If Blue and White seeks to appoint a speaker from within its ranks, it can do so by forming a coalition.
If Blue and White seeks to pass laws that would bar a future prime ministerial candidate from serving based on term limits, or due to criminal indictments, it can do so by forming a coalition.
If Blue and White seeks to make its chairman Gantz prime minister, he has already been granted a clear mandate by Israel’s president. All his party needs to do to replace Netanyahu is form a coalition.
A Blue and White-led majority coalition would need to be formed together with members of Netanyahu’s Likud Party—or with the support of the 15-seat Joint List.
A government based on anti-Zionist Arab party support would also be a political precedent. Never since the establishment of the State has an Arab party joined any Israeli governing coalition, in an ongoing protest against Israel’s legally-canonized character as a Jewish state. Furthermore, forming a government with Arab party support would be in violation of Gantz’s explicit and repeated promise to the electorate not to do just that.
Making matters even more complicated, several members of Gantz’s own party have openly stated that they would not vote in favor of a government that relies on Arab party support.
So just as Israel is forced to deal with what is quickly ballooning into the largest health and economic crisis in its history, it is now being forced to deal with a political crisis that is shaking the very foundations of its system of governance, and is rapidly eroding the trust of Israel’s beleaguered citizenry.
Alex Traiman is the managing director and Jerusalem bureau chief of Jewish News Syndicate.