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Analysis'Mr. Prime Minister, you’re acting against the law'

‘Insane’ cabinet bedlam as Netanyahu tries to wriggle out of unity straitjacket

Desperate to avoid November rotation, Likud unveils a new line of argument at meeting on appointing a justice minister: The unity government restrictions no longer apply to us

Haviv Rettig Gur

Haviv Rettig Gur is The Times of Israel's senior analyst.

Prime Minister Benjamin Netanyahu at a press conference at the Knesset in Jerusalem on April 21, 2021. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu at a press conference at the Knesset in Jerusalem on April 21, 2021. (Yonatan Sindel/Flash90)

“There’s screaming in the cabinet,” the Israel Hayom daily reported on Tuesday.

“Insane,” declared New Hope leader Gideon Sa’ar.

“The brink of an abyss of anarchy,” proclaimed Yamina leader Naftali Bennett.

Meetings of the Netanyahu-Gantz unity government are never calm. The tension is constant, palpable, and, critics say, crippling.

But Tuesday’s frenzied shouting and accusations of treachery broke new ground. No one in the political system remembers anything quite like it.

Prime Minister Benjamin Netanyahu with then-Science Minister Ofir Akunis (L) at the start of the weekly cabinet meeting on December 22, 2019, at the Prime Minister’s Office in Jerusalem. (Marc Israel Sellem/Pool/Flash90)

A vote to appoint Likud’s Ofir Akunis as justice minister was deemed “illegal” by the attorney general and, within three hours of the vote, was dragged before the High Court of Justice.

Did the prime minister just call an illegal vote in the cabinet? Would the new justice minister, a loyalist of Benjamin Netanyahu, take office and wield his influence in the service of his indicted boss?

What just happened, and why did it send convulsions through the political system?

Contagion in the prisons

Israel hasn’t had a justice minister since April 1, after Blue and White leader Benny Gantz’s three-month stint as interim minister lapsed without the unity government able to agree on a permanent replacement.

The Justice Ministry has become a symbol of the unity government’s failures. It is now functioning without a minister, without a director general and without a state attorney. Attorney General Avichai Mandelblit, the country’s top law enforcement officer, is set to conclude his term in the coming months. Appointing his replacement requires a justice minister.

Attorney General Avichai Mandelblit at a farewell ceremony for outgoing Justice Minister Ayelet Shaked at Justice Ministry headquarters in Jerusalem, June 4, 2019. (Hadas Parush/Flash90)

To critics of Netanyahu, the gutting of the top echelons of the ministry is no accident. Netanyahu has frozen all appointments until he manages to form a government that gives him control of the ministry. He hopes, these critics say, to secure the appointment of justice officials who will help him escape the noose of his corruption trial.

But in recent days, the lack of a justice minister has become an urgent problem. The justice minister alone has the power to allow prisoners to attend court hearings via videoconference. Without a justice minister, prisoners are now being brought to courthouses – and facing an acute danger of spreading the coronavirus.

As Mandelblit explained to the cabinet on Tuesday, “Every day brings many dozens of new arrestees who are not vaccinated [into the justice system], and there’s no way to know who’s sick and who isn’t. That problem must be resolved immediately. The prime minister told the [High] Court that the cabinet would convene today to solve this problem.”

Something had to be done. Lives were at stake.

Collapse

Gantz arrived at the cabinet meeting Tuesday ready for Netanyahu’s famed political maneuvers. Netanyahu would try to avoid appointing a justice minister, Gantz publicly warned.

Defense Minister Benny Gantz (C-L) and Prime Minister Benjamin (C) in the Knesset, in Jerusalem, April 6, 2021. (Alex Kolomoisky/POOL/Flash90)

He was wrong.

As the cabinet meeting got underway, Netanyahu asked Gantz to delay the vote on a new justice minister by 48 hours in order to hammer out an agreement on the identity of the new minister. Gantz at first agreed to the delay, but not to compromising on the appointment, insisting he would personally serve as Blue and White’s candidate for the post.

The position, he noted, remained under Blue and White’s control according to the “parity” rules of the unity government set down in the Basic Law: The Government.

The cabinet meeting that ensued took place behind closed doors, but every step was calculated for public consumption. Ministers knew that their every word would be leaked, in many cases in the form of actual audio recordings.

Midway through the meeting, Public Security Minister Amir Ohana, a Netanyahu loyalist and former Netanyahu-appointed justice minister, raised the suggestion that the cabinet consider appointing a different person as minister. He did not offer names.

Prime Minister Benjamin Netanyahu and Public Security Minister Amir Ohana in Tel Aviv, on December 1, 2020. (Miriam Alster/Flash90)

Gantz began to suspect a ruse. According to leaks, he then raised his voice and demanded a justice minister be appointed immediately, “or the High Court will have its say.”

“I’m done with these games,” he thundered. “We vote now.”

The motion to appoint Gantz was brought to a vote. Gantz lost in a party-line vote of 10 to 17.

Then Netanyahu called a sudden vote on appointing Likud’s Regional Cooperation Minister Ofir Akunis as justice minister.

A stunned Gantz immediately shouted that he was completely opposed to the move.

Mandelblit interjected that the vote was illegal given Gantz’s opposition.

Attorney General Avichai Mandelblit at the annual INSS conference in Tel Aviv on January 28, 2020. (Tomer Neuberg/Flash90)

Channel 12 began reporting “shouts in the cabinet.”

Netanyahu instructed Tzachi Braverman, his cabinet secretary, to move ahead with the vote without giving Mandelblit a clear opportunity to voice his objections.

The room erupted. Blue and White’s Pnina Tamano-Shata told Braverman he must not call the vote. “You’re the cabinet secretary, not the Likud secretary,” she proclaimed over shouts from Likud’s Miri Regev.

Braverman replied that he was “subordinate to the prime minister, who’s running the meeting.”

In the commotion, Mandelblit tried to speak. “Mr. Prime Minister, you’re acting against the law,” he said.

Left to right: Energy Minister Yuval Steinitz, then-foreign minister Israel Katz, Prime Minister Benjamin Netanyahu and Cabinet Secretary Tzachi Braverman attend the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem on December 22, 2019. (Tsafrir Abayov/Pool/AFP)

Netanyahu called the vote. The pro-Netanyahu camp carried the day, again with a 17-10 vote.

But Mandelblit refused to accept the result. “The decision didn’t pass, that’s the legal result of this,” he told Netanyahu. He called the prime minister’s behavior “unprecedented” and said Akunis had not been appointed.

Ohana pointedly interjected with “congratulations to Justice Minister Akunis.”

Netanyahu turned to Mandelblit and Gantz and told them bluntly, “No one will understand your explanation as to why the vote on Gantz was valid but the vote on Akunis wasn’t.”

“Don’t worry,” Mandelblit answered, “the High Court will understand me.”

Attorney General Avichai Mandelblit (L) and then-justice minister Amir Ohana attend an annual Justice Ministry conference in Airport City outside Tel Aviv on September 3, 2019. (Tomer Neuberg/Flash90)

As the gathering broke up, Netanyahu said, “It’s a shame the meeting ended this way.”

Political costs

The news of the vote convulsed the political system as partisans rushed to take sides.

Likud MKs put out statements congratulating “Israel’s new justice minister.” Religious Zionism leader Betzalel Smotrich lashed Mandelblit on Twitter for presuming to cancel a cabinet vote.

Meanwhile, Yesh Atid leader Yair Lapid immediately set about exacting a political cost. “Anyone who might have been considering signing some sort of agreement with Netanyahu just got a reminder that there’s no chance whatsoever that he’ll carry out his part in any agreement,” he said in a thinly veiled reference to right-wing parties Yamina and New Hope and, indeed, to Blue and White — all of whose leaders are being wooed by Netanyahu.

“He just isn’t capable of not cheating,” Lapid added for good measure.

Yesh Atid party leader Yair Lapid at a faction meeting in the Knesset in Jerusalem on April 26, 2021. (Yonatan Sindel/Flash90)

Lapid’s comments seemed to fall on fertile ground. New Hope leader Gideon Sa’ar said in a statement that the “insane” cabinet meeting “is further evidence of the vital need for a leadership change.”

Bennett of Yamina didn’t pin the blame explicitly on Netanyahu, but issued a warning that “Israel is nearing the brink of an abyss of anarchy.”

Some in Likud spoke quietly to reporters about their anger at Netanyahu over a stunt they believed was meant to influence his corruption trial, but which had only hurt Likud’s coalition prospects.

The end of unity

What should Israelis make of the unprecedented cabinet fight? Did Netanyahu simply outmaneuver Gantz in a legitimate cabinet vote, to his opponents’ predictable chagrin and frustration? Or, as the attorney general insisted, did Netanyahu “cross a line” and knowingly flout Israel’s Basic Laws, which set the ground rules of its democracy?

Was there any validity to the feeling expressed by one shocked pundit who said, “Israeli democracy was suspended today!”

Police officers scuffle with demonstrators during a protest against PM Benjamin Netanyahu, outside the Prime Minister’s residence in Jerusalem on April 24, 2021. (Yonatan Sindel/Flash90)

The scale of the blowback seemed to surprise Netanyahu. Shortly after the vote, his office caught wind of the frenetic debates it had sparked in the media and online and began releasing a flurry of statements attempting to justify the move.

The statements laid out a legal defense of Netanyahu’s actions, and revealed their purpose: a systematic, concerted legal challenge to the rules of the unity government through which Gantz has been able to check Netanyahu’s moves at every turn, especially when it comes to the Justice Ministry. Piece by piece, then all at once, Netanyahu has launched his bid to break free.

The legal arguments are mostly technical. In the broadest brushstrokes, they come down to a semantic argument about whether Netanyahu’s calling of the Akunis vote could be counted as part of the same agenda item as the vote on Gantz, whether Netanyahu was permitted to add items to the cabinet’s agenda mid-meeting, and whether Gantz can still claim to control the Justice Ministry based on a coalition agreement from the previous Knesset.

But these technicalities are beside the point.

The rules legislated last year for a “parity” government grant each of the country’s two “prime ministers,” the serving one and the “alternate” one, a veto over each other’s actions in the cabinet. They also grant each side complete control over appointing and firing of ministers within their “bloc” in the cabinet.

Blue and White leader Benny Gantz (left) and Prime Minister Benjamin Netanyahu sign their unity government agreement on April 20, 2020. (Courtesy)

That parity mechanism, Netanyahu is now arguing, is less than it appears.

Who’s to say?

Netanyahu’s attorney David Peter noted in the evening before the High Court that while the parity mechanism stipulates that each side of the bifurcated government has a veto over the other’s actions, the cabinet never established detailed procedural rules for how that veto should function in practice. Who’s to say that Gantz’s say-so is enough to veto the vote?

(It must be said: The Netanyahu-Gantz government never set down formal procedures for activating the veto, as required by law, because Netanyahu flatly refused to do so. But a February legal opinion by Mandelblit himself set down procedural rules, which had been followed by the cabinet until Tuesday’s vote.)

After hearing Peter’s argument, Justice Uzi Vogelman replied in surprise, “Your argument empties the stipulations of the Basic Law of all meaning on the basis that procedures weren’t established. That’s a radical view.” That is, the lack of agreed-upon procedures doesn’t erase the requirement to obey explicit law.

And here’s another legalism that lays bare Netanyahu’s intentions: While the “parity” mechanism established in law says each prime minister – the serving and the “alternate” – has full control over the appointment and firing of ministers in his “bloc,” the document that stipulates which ministry belongs in each bloc isn’t a law. It’s the coalition agreement signed in the last Knesset between Likud and Blue and White. The parity law is still in force, Netanyahu’s attorney argued on Tuesday, but the agreement that stipulates that the Justice Ministry lies in Blue and White’s purview – is not.

Prime Minister Benjamin Netanyahu, right, and Defense Minister Benny Gantz hold a press conference in Tel Aviv on July 27, 2020. (Tal Shahar/Pool/Flash90)

If we violated anything, Public Security Minister Ohana told cabinet ministers after Tuesday’s vote, it was a coalition agreement no longer in force with the election of a new Knesset.

It’s a campaign built on ambiguity, on the uncertainties that attend a new political structure.

First parity, then the rotation

Mandelblit’s arguments before the court were decidedly less creative. In his letter to the court, he stuck to establishing the sources for the procedures he believes the cabinet flouted in its Tuesday vote.

The Akunis vote violated both the letter and spirit of the parity law, he argued, as well as procedural rules set down by the cabinet itself in an April 25, 2020, decision that specified that “setting the agenda for the cabinet’s work and its discussions shall be undertaken by agreement in advance of the prime minister and the alternate prime minister.”

No vote, nor even a mere topic for discussion, could be brought up in the cabinet without the advance agreement of both Gantz and Netanyahu.

Likud Minister Ofir Akunis in Jerusalem on May 28, 2019. (Yonatan Sindel/Flash90)

Otherwise, what was the point of a parity government? It was a mechanism intended to produce trust between two distrustful rivals, to convince both sides they would be able to stop the other from taking actions they opposed.

Mandelblit and his attorneys had more arguments, some of them highly technical: The fact that all 10 Blue and White ministers voted against Akunis amounted to a Blue and White veto of the decision under the parity rules; the coalition agreement stipulating which ministries were in which “bloc” was part of the government formation process laid down in law, and amounted to a government commitment to the Knesset that was still in force; and so on.

But the bottom line was simple. “The cabinet acted consciously, willfully in an illegal manner,” Mandelblit told the court.

The court’s slow and technical deliberations on Tuesday evening seemed a stark contrast to the frenetic shouting in the cabinet and the furious bickering that quickly ensued on Twitter. It refused to rule on the spot, issuing a temporary stay on the Akunis appointment and calling all sides back for another hearing on Wednesday. But it is in the courtroom that the real drama of this political moment will be decided. In his political and legal blitz against the parity laws, Netanyahu hopes to find the deliverance he has failed to win at the ballot box.

As things stand, Netanyahu’s prospects of forming the next government look bleak. No matter how hard he tries to piece together a coalition, the math refuses to come together. Across the aisle, the story is much the same. The “national unity government” being hammered out by Lapid and Bennett will require political factions deeply opposed to one another to join forces in a single coalition.

Prime Minister Benjamin Netanyahu visits the Mahane Yehuda market in Jerusalem a day before the elections, on March 22, 2021. (Olivier Fitoussi/Flash90)

A fifth election is more than likely. It’s probable.

A fifth election also brings Netanyahu dangerously close to the mid-November deadline for Gantz’s rotation as prime minister.

If, in fact, the parity laws can be weakened or overturned through sheer, blunt audacity and a healthy measure of legal pressure – then the same can be done to the rotation agreement, which is anchored in the same laws and coalition agreements.

New, unvaccinated prisoners are mixing in courtrooms and jails while Israel’s politicians bicker and maneuver over procedure. A new reform to the veterans rehabilitation division of the Defense Ministry failed to make it onto the cabinet’s agenda on Tuesday, as did an urgent appeal from health officials to limit incoming air travel from countries like India experiencing severe outbreaks of new coronavirus variants.

It’s not yet clear who will win the fight over the unity government. As for losers in this fight? Those are easy to find.

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