‘Israel’s worst constitutional crisis,’ until the next one

The “worst constitutional crisis in Israeli history,” as described Tuesday night to Channel 12 news by an unnamed “senior legal official,” has ended, not with a bang, but with a whimper.

Prime Minister Benjamin Netanyahu, having orchestrated the appointment of Ofir Akunis as justice minister Tuesday in open defiance of his attorney general’s warning that to do so was illegal, on Wednesday afternoon announced he would instead honor his coalition agreement with Blue and White’s Benny Gantz and let Gantz have the job again after a four-week interregnum.

Netanyahu has argued that Akunis’s appointment was legal, and that AG Avichai Mandelblit’s advice was “absurd,” “manipulative” and “impossible” — apparently partly on the basis that aspects of his coalition agreement with Gantz no longer apply because the coalition collapsed in December and elections have since been held. But less than three hours before a scheduled High Court hearing, and with the court having temporarily suspended Akunis’s appointment Tuesday night, the premier backed down, and the cabinet duly approved Gantz as the new-old minister. (Akunis, a former Netanyahu spokesman, goes down in history as Israel’s shortest-serving justice minister, if he ever legally held the post at all, and the butt of endless social media humor: mild e.g., “Honey, you won’t believe what happened to me at work today…”)

Some commentators believe that Netanyahu plotted the entire saga to serve his intertwined legal and political purposes. He will have more ammunition to argue that the attorney general is out to get him — he has long claimed that the state prosecution, headed by Mandelblit, fabricated the three corruption charges for which he is on trial — and that the High Court is overly interventionist and must be reined in.

Then-education minister Naftali Bennett (left) with former interior minister Gideon Sa’ar during Jerusalem Day celebrations at the Western Wall, on May 17, 2015. (Flash90)

Perhaps that was his plan. But Netanyahu needs to retain power if he is to push through legislation that would somehow extricate him from his trial. And the short-term effect of his behavior Tuesday has been to reduce the already fading possibility of his mustering a majority in the final week of his mandate to form a government, and to bolster the prospects of the so-called “change bloc” in its attempt to oust him.

Yamina’s Naftali Bennett lamented Tuesday that Israel was edging toward anarchy. New Hope’s Gideon Sa’ar, more explicit, said the cabinet bedlam was “further testament to the need to replace the leadership.” Neither man, whose support Netanyahu has been desperately seeking to fashion a majority, would have been encouraged by the mayhem to join forces with him now.

Attorney General Avichai Mandelblit attends a Knesset House Committee debate, February 4, 2020. (Adina Veldman/Knesset)

Doubtless, the justice minister saga and the associated wider war between Netanyahu and his diverse range of political opponents will yield further twists and turns in the coming days. Has Netanyahu alienated further allies, and lost all hope of building a coalition? Will Yair Lapid of Yesh Atid, Bennett and Sa’ar now manage to reach an agreement and get a government sworn in? What might Netanyahu do next to try to prevent this?

But several lessons are already worth learning.

For a start, it has never been clearer that the twin roles filled by the attorney general — head of the state prosecution and chief legal adviser to the government — must be separated. Israel’s reality for 25 years has been that its prime ministers wind up under criminal investigation. Time after time, the top official advising the prime minister on what he and his cabinet colleagues should and shouldn’t do, therefore, is also investigating, considering prosecuting, and in Mandelblit’s case, actually prosecuting the prime minister.

Plainly, that creates a near-impossible situation for both PM and AG. It is a recipe for friction and mistrust, and Tuesday’s cabinet events — when Netanyahu refused to let Mandelblit present his position before the vote, and dismissed his advice after it — was only the latest and worst example of this. There is no good reason why the attorney general’s two jobs should not be performed by two officials. That’s one legal reform that is long overdue and clearly in the national interest.

Prime Minister Benjamin Netanyahu, center, Defense Minister Benny Gantz, left, and Cabinet Secretary Tzahi Braverman, at the first meeting of the 35th Government, in the Knesset on May 17, 2020. (Kobi Gideon/GPO)

Secondly, one has to ask why the cabinet secretary, Tzahi Braverman, failed to do his job amid the chaos. He works for the government, and by extension for the State of Israel. He is not supposed to be a prime ministerial “yes man.”

Last month, Braverman broke civil service regulations and posted a selfie showing him voting Likud in the elections. In that partisan spirit, he acted Tuesday as a functionary for Likud party leader Netanyahu, instead of seeking to highlight to ministers that Mandelblit was warning that their vote on Akunis was illegal. His behavior was a disservice to the government and to his office.

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בהמשך לחשיפה של @itamareichner פנינו לנציב שירות המדינה בדרישה להגיש קובלנה כנגד מזכיר הממשלה ברוורמן ולהשעותו עד לסיום הדיון בה.

התנהלותו של ברוורמן מהווה עבירה בוטה על החוק ופוגעת בתדמית השירות הציבורי ובממלכתיותו. במיוחד כאשר מדובר בעובד בכיר המכהן כמזכיר הממשלה
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— התנועה לטוהר המידות (@TLMisrael) March 24, 2021

And thirdly, the dismal shenanigans confirm the much-highlighted dangers of tailoring what is supposed to be our quasi-constitutional legislation — the array of Basic Laws — to suit the narrow, transient needs of the political moment.

With Netanyahu’s climbdown and the cancellation of the Supreme Court hearing, we don’t know how Israel’s justices would have sought to separate elements of the Netanyahu-Gantz coalition agreement that were anchored last year in amendments to “Basic Law: The Government” (and that therefore could not simply be abrogated) from elements that could be considered mere political deals (to be pushed aside when the political reality changed).

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

Essentially, until he backed down, Netanyahu appeared to be seeking to ignore the very amendments to the Basic Law that a reluctant Supreme Court last year allowed him and Gantz to push through. Those laws are not to be tinkered with when their provisions prove inconvenient. They should be carefully formulated to serve the interests of the state, not the particular, short-term requirements of political masters who come and who, however reluctantly, eventually go.

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** This Editor’s Note was sent out Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.