Israel has not had a fully functioning government for more than nine months — since December 26, 2018, when the 20th Knesset voted to dissolve itself. And given the complex political reality produced by last Tuesday’s elections, it is unlikely to get one long before the end of 2019, and quite possibly not even then.
Throughout all this time, Benjamin Netanyahu has remained prime minister, heading a transitional government. He has fired and appointed ministers, flown abroad, revealed previously classified intelligence about a secret Iranian nuclear facility and ordered military strikes on targets in Syria and Iraq, according to foreign reports.
As the government remains deadlocked, and may stay that way for several months, Netanyahu has kept the title of prime minister purely by dint of being the last person to hold the post. But how long can he continue to make military and diplomatic moves without enjoying the confidence of the Knesset?
Two examples of his transitional role cramping his plans came just before last week’s election, as he reportedly sought both to embark on a large-scale operation in Gaza and apply Israeli sovereignty over a significant chunk of the West Bank.
In both measures, he was stopped by Attorney General Avichai Mandelblit, who argued that he lacked the authority to take such impactful steps during a transitional government.
“Netanyahu is the prime minister of Israel. That’s his title, and it will stay his title until there is a new prime minister. But he’s now a transitional prime minister for the third time in a row,” said Suzie Navot, a professor of constitutional law at the Stricks Law School in Rishon Lezion.
Navot suggested the amount of leeway Netanyahu has is directly tied to how close Israel is to elections.
“The closer we get to new elections, the more his margin of discretion narrows. [Today,] right after elections, it is equally small, maybe even smaller, because we don’t know how the coalition talks will end and who will lead the next government.”
Netanyahu currently stands at the helm of a bloc of 55 MKs, she said, referring to the ultra-Orthodox parties and the pro-settler Yamina list who, along with his own Likud, backed him to continue as prime minister in talks with President Reuven Rivlin on Sunday and Monday. “But he doesn’t have a majority, which means he and his government do not enjoy the confidence of the Knesset.
“And yet,” she stressed, “there is no vacuum of power,” as Netanyahu’s government has basically the same authority as it did before the elections.
It is true that since December Netanyahu has headed a transitional government, but it would be inaccurate to call him a “caretaker prime minister,” elaborated Amir Fuchs, who heads the Defending Democratic Values Program at the Israel Democracy Institute.
According to Basic Law: The Government, an outgoing government “shall continue to carry out its functions until the new Government is constituted.” The letter of the law, in fact, gives a transitional government even more rights than a regular government has, in that it may appoint a minister without the Knesset’s approval.
However, Israeli courts have ruled on several occasions that the powers of transitional governments are indeed limited, according to Fuchs.
For example, a caretaker government must not make senior appointments, like new Supreme Court justices or a new police chief, Fuchs said. Dramatic diplomatic decisions need to be avoided as well during transition periods.
“If a transition government were to attempt to make irreversible decisions, it’s likely that the Supreme Court will … nullify them,” he said.
If Rivlin were to task Netanyahu’s rival Benny Gantz, leader of the Blue and White party, with trying to form the new government, Netanyahu’s wiggle room would shrink even further, Fuchs added. “But he could still do things.”
What about major diplomatic moves?
A few days before the September 17 election, Netanyahu vowed, if re-elected, to apply Israeli sovereignty over the Jordan Valley and northern Dead Sea area — some 25 percent of the West Bank — as soon as his new government was established. He said he would have done so before the elections had the attorney-general not told him he couldn’t.
“At present, he has no discretion to annex. Anything that can wait and is not essential, say, for security reasons, will have to wait for the next government,” said Navot, echoing Mandelblit’s advice.
“The idea here is that a transitional government should not create facts on the ground when there is no Knesset that can provide oversight. Checks and balances means that parliament oversees the work of the government, and the Knesset so far hasn’t expressed confidence in the prime minister’s policies.”
(The Knesset itself, duly elected, can legislate without limitations, Amir Fuchs stressed, adding that new laws have been passed under previous transitional governments. There are also no legal precedents that restrict a caretaker government’s economic policies, Fuchs said, though “from the spirit of the rulings regarding other areas, you can glean that transitional governments should avoid major [economic steps] that can wait. If something is required urgently, the government can act, but it’s a matter of balance — you want to preserve the status quo but also not cause harmful stagnation,” he said.)
According to Navot, though, things get murkier when it comes to the question of whether prime minister can act should the US present its oft-delayed diplomatic initiative for peace with the Palestinians.
“There is no clear answer to that,” said Navot. “It would certainly be better if it could wait until there’s a new government. But we have to remember that the Supreme Court didn’t prevent [then prime-minister] Ehud Barak from negotiating with the Palestinians even after he dissolved the Knesset.”
In December 2000, Barak, the leader of the Labor party at the time, triggered new elections by resigning as prime minister, though formally he stayed in that role until his successor, Likud’s Ariel Sharon, took office in March of 2001. Despite being a lame duck, Barak embarked on final status talks with the Palestinians at Taba in late January 2001, without Israeli courts interfering.
“There’s an obligation of restraint, but the court didn’t get involved in Barak’s talks with the PA because it was clear that every decision he would have made would have had to be okayed by the new government,” Navot said. Barak’s government indeed had stated that any potential peace deal would be brought to a vote in the next Knesset.
In the case of Trump’s peace effort — which the administration deliberately calls a “vision” and not a plan — an imminent peace agreement between Israelis and Palestinians appears extremely unlikely, certainly before a new government is sworn in. But if the White House were to release its vision soon, the current and possible future prime minister would not be barred from at least commenting on it, according to Fuchs.
“Netanyahu currently does not have to right to make such decisions,” he said, “but there’s nothing stopping him from expressing his opinion.”