Composite photo shows Prime Minister Benjamin Netanyahu, left, and Blue and White party chief Benny Gantz, right. (Flash90)
Composite photo shows Prime Minister Benjamin Netanyahu, left, and Blue and White party chief Benny Gantz, right. (Flash90)
AnalysisA 'shocking' deal full of 'legal monstrosities' - ex-justice

‘Monstrous’ coalition deal neuters Knesset. Should judges intervene? Will they?

Israel’s top court is hearing six petitions against the Netanyahu-Gantz ’emergency’ agreement, many of whose clauses play havoc with Israel’s Basic Laws

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

The 23rd Knesset began legislating Thursday the many convoluted amendments to Israel’s constitutional Basic Laws demanded by the coalition agreement signed Monday between Likud and Blue and White.

The changes are many. They include (bear with me): establishing a new kind of “alternating” government composed of a prime minister and an “alternate” prime minister; creating a new “emergency” form of executive government with the power to freeze all legislation not connected to the coronavirus crisis or approved by the two (current and future) prime ministers; setting the current Knesset’s lifespan at 36 months and establishing a date for the next election; and passing the so-called “skipping Norwegian law” that allows some of the eventually envisaged 52 ministers and deputy ministers of the new government (nearly half of parliament) to temporarily resign their Knesset posts to let new MKs into the parliament in their stead — but not according to their slate’s original order, so as not to inadvertently increase the size of the Yesh Atid and Telem factions.

Dizzy? There’s more. Article 13C of the agreement calls for amending a Basic Law to allow for two deputy ministers in a single ministry, so there will be somewhere to put the 16 deputies okayed by the agreement; another bill freezes senior appointments in the public service, including that of the state attorney, throughout the six-month “emergency” period of the new government.

The above list isn’t exhaustive but suffices to convey a sense of the labyrinthine complexity and extraordinary innovations of the new agreement. Nothing quite like it has ever come out of an Israeli coalition negotiation.

Unsurprisingly, the proposed changes raise a host of legal and ethical problems. Fundamental alterations are being made to Israel’s constitutional order without a meaningful debate about what they mean. They come only to serve this political moment, with many of them explicitly fashioned to allow Benjamin Netanyahu to avoid being ousted over his corruption trial, even if he is convicted.

Prime Minister Benjamin Netanyahu at the Knesset on March 26, 2020. (Knesset)

Criticism of the deal has been loud and persistent from some quarters but mostly muted from the public at large. Exhausted and isolated by, respectively, 18 months of consecutive elections and the coronavirus pandemic, many Israelis are simply glad that the political deadlock is apparently over.

But good governance and anti-corruption advocates are not as relieved. Complaints against the agreement have been filed in every imaginable legal body, from the High Court of Justice to the attorney general’s office to the Knesset legal adviser’s office.

Former vice president of the Supreme Court Elyakim Rubinstein at a ceremony in Jerusalem on October 26, 2017. (Yonatan Sindel/Flash90)

As former Supreme Court justice Elyakim Rubinstein told Israel Radio on Thursday morning, reflecting the view of many critics, “the coalition agreement is shocking to a jurist, because it contains so many legal monstrosities. Someone who respects the concept of Basic Laws, who sees in them a constitutional text, can’t possibly like this.

“The [Basic Laws] are being trampled as if they were a sewage bylaw of the Raanana municipality.”

Illustrative: Supreme Court President Esther Hayut (C) arrives for a High Court preliminary hearing on whether a lawmaker facing criminal indictment can be tapped to form a coalition, December 31, 2019. (Yonatan Sindel/Flash90)

Most of the complaints raised are unlikely to trigger judicial intervention, even if the advocacy groups’ concerns are valid and worthy of public consideration.

Yet the court may well decide to intervene with the coalition deal in response to any of the six petitions currently before it.

One petition protests that the Knesset is “abusing its authority to amend Basic Laws in order to change the structure of the regime.”

In other words, this petition essentially charges, the Knesset is being asked to amend Israel’s constitutional order — freezing parliament’s power to legislate, for example — in ways that make Israel something less than a functioning democracy.

But a survey of legal experts, both conservative and liberal, zeroes in on two complaints about the coalition agreement that should be followed most closely — and that reveal a great deal about the current Israeli political moment.

Separation of powers

One key complaint: the agreement violates the principle of the separation of powers by subordinating the Knesset’s powers and responsibilities to the needs of the government.

For example, the coalition agreement states in Article 8 that if Netanyahu is disqualified by the High Court from serving as prime minister in the first six months of the coalition’s lifespan, the Knesset will be dissolved and new elections called.

Some legal scholars have warned that this passage violates the principle of separation of powers, since it triggers the dissolution of the parliament in the case of a judicial ruling against the head of the executive branch. Some even described the clause as a kind of “threat” leveled at the court if it disqualifies an indicted prime minister.

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

The complaint is valid. The deal tries to do exactly that: to warn the court that any disqualification of Netanyahu will carry dire consequences for the country as a whole.

MK Yariv Levin at the signing of the agreement between Benjamin Netanyahu and Benny Gantz on April 21, 2020.

But, frustratingly for its detractors, the text of the agreement treads carefully and adroitly around anything that might give the High Court easy cause for intervention. It was written by attorneys focused on little else, including Likud’s MK Yariv Levin, a lead negotiator of the agreement who is also a former deputy head of the Israel Bar Association and one of the country’s most prominent conservative advocates for judicial restraint.

Thus, Article 8 does not actually instruct the Knesset to dissolve. It merely says that if either Gantz or Netanyahu are “prevented” in any way from serving as either prime minister or alternate prime minister — no mention is made of any court — then they “will act jointly to bring the Knesset to dissolution.”

The text amounts to little more than two politicians committing to one another that they will take entirely legitimate political actions if either finds themselves unable to hold the post promised to him in the agreement. Where’s the (legal) harm in that?

Another measure, an amendment to the Basic Law: The Knesset, tries to ensure the legislative freeze is upheld. It does so by raising the number of MKs needed to pass legislation not approved by both Netanyahu and Gantz to 75.

MKs vote one-by-one in the Knesset plenary to form four committees including the Coronavirus Committee, March 24, 2020. (Adina Veldman/Knesset)

To reiterate, the Knesset will no longer be able to legislate against the will of the two prime ministers unless it musters the support of a full 75 of the 120 MKs to do so.

These are fundamental changes to the relationship between government, parliament and court, and they are advancing with little public scrutiny.

Judges vs. lawmakers

But the most significant — in the sense of likely to draw the court’s intervention — legal problem with the agreement may not be the weakening of the Knesset, but the coalition’s takeover of the Judicial Appointments Committee.

In their agreement, Netanyahu and Gantz defied a longstanding tradition according to which the Knesset is supposed to appoint one representative of the opposition to the committee that selects Israel’s judges. That defiance is mentioned in several of the High Court petitions, including one by Gantz’s former partners, the Yesh Atid and Telem parties.

Under a 2002 law, the committee that appoints Israel’s judges is composed of nine members: three Supreme Court justices, two representatives of the nation’s lawyers (chosen by the Israel Bar Association), two representatives of the government (the justice minister and another cabinet minister), and two representatives of the Knesset (traditionally one from the coalition and one from the opposition).

Illustrative: Then-justice minister Ayelet Shaked seen with then-chief justice Miriam Naor, Finance Minister Moshe Kahlon and members of the Judicial Appointments Committee at a meeting of the committee at the Ministry of Justice in Jerusalem on February 22, 2017. (Yonatan Sindel/Flash90)

Crucially, the law states that seven votes are required to select a Supreme Court judge. That is, anyone holding three or more seats on the committee has a veto over Supreme Court appointments: that includes the Supreme Court itself, which has a three-member delegation that has never divided its votes. It also includes the government, whose two cabinet ministers plus a coalition MK give it a similar veto power.

But the new coalition agreement with Blue and White upends that carefully constructed tension. With Blue and White’s Avi Nissenkorn, the incoming justice minister, slated to take over the committee’s chairmanship, one of the government’s three representatives won’t be voting for conservative judges. The right would thus be set to lose its veto over new appointments.

That fact led to a right-wing rebellion earlier this month against the coalition agreement – and was part of the reason for the two-week delay in closing the deal as Netanyahu and Gantz hammered out a compromise.

The compromise is elegant and revealing: Derech Eretz MK Zvi Hauser, a political conservative and former cabinet secretary to Netanyahu who is now part of Gantz’s bloc and is considered a moderate on judicial reform, would take the place traditionally reserved for an opposition MK.

Netanyahu claimed victory for maintaining a veto-bearing conservative delegation on the panel; Gantz claimed victory for denying the Likud bloc a chokehold on the judicial selection process.

Zvi Hauser of Blue and White party in the Israeli parliament on May 6, 2019 (Noam Revkin Fenton/Flash90)

And liberal watchdog groups were thrilled to find they finally had a legal case against the agreement that had a reasonable chance of success.

‘Constitutional tradition’

In 2017, High Court justices Neal Hendel, Uzi Vogelman and Yitzhak Amit issued the court’s first ruling on a fraught question: Is there a binding “constitutional tradition” that one of the two Knesset representatives on the Judicial Appointments Committee must come from the opposition?

The case came before the court after Yisrael Beytenu MK Robert Ilatov, first appointed as an opposition MK in 2015, when his party sat in the opposition, refused to relinquish his post after his party joined the government in 2016.

In the decision, written by Hendel, the court did two disconnected things: First it threw out the petition on technical grounds, as it was brought long after Ilatov had already become a coalition MK.

Then it argued across 31 densely written pages that even though the court wasn’t exercising its right to declare the opposition’s representation on the committee a binding “constitutional tradition,” it was within its rights to do so down the road. The petition’s argument was reasonable, even if it was brought too late to be acted on, the court said to no one in particular at the time, but for posterity.

Supreme Court Justice Neal Hendel at the Supreme Court in Jerusalem on April 23, 2018. (Yonatan Sindel/Flash90)

That’s not flippant: it’s the court’s own statement of its intentions. “Were the Knesset to decide in the next election to the Judicial Appointments Committee not to appoint a representative from the opposition factions, it would face a serious legal hurdle,” the decision read. It was a warning.

Fast forward to the 2020 coalition deal: If Ilatov’s insistence on remaining on the committee through dint of political inertia spurred the court to such a sympathetic meditation on the importance of an opposition vote on the committee, then the court may well act aggressively in the much more egregious case produced by Gantz and Netanyahu, who, with malice aforethought, agreed explicitly to exclude the opposition for sheer political convenience.

“What’s happening now is much more serious” than the Ilatov case, argues Gil Bringer, a lecturer in law at Ono Academic College and a grizzled veteran of Israel’s legal culture wars as the former Jewish Home-appointed coordinator of the cabinet’s legislation committee under former justice minister Ayelet Shaked.

Still, he argues that the court should not strike down Hauser’s appointment for a series of reasons.

For example, he notes that the Knesset representation on the committee has been too changeable to be counted a “constitutional tradition.” From 2009 to 2013, Yisrael Beytenu’s David Rotem was the coalition representative and National Union’s MK Uri Ariel was the opposition’s, but the division meant little as both were conservative critics of the court. From 2013 to 2015 the representatives were Labor’s Isaac Herzog and Shas’s Itzik Cohen — both from the opposition. And from 2015 to 2019, Likud’s Nurit Koren represented the coalition and Yisrael Beytenu’s Ilatov began as an opposition MK but spent most of his term in the coalition.

Yisrael Beytenu MK Robert Ilatov at a Knesset House Committee meeting on March 15, 2017. (Miriam Alster/Flash90)

That is, in the past 11 years, less than half the time saw the formula of one opposition and one coalition MKs maintained. That’s hardly the stuff of a “tradition,” notes Bringer.

But irrespective of what he believes the court “should” do, Bringer agrees with liberal petitioners and other legal experts that if the court strikes down anything, its sights will likely be set on Hauser’s appointment.

A weakened Knesset

In the end, while the Hauser appointment may draw judicial ire and is widely seen as the most likely issue over which the next battle between liberals and conservatives will be fought, it is the coalition agreement’s subjugation of the Knesset that could have the more profound long-term effect on Israeli public life.

Israel’s democratic order is premised on a principle that seems openly threatened by the new agreement: the demand that the government must have the confidence of the Knesset.

Netanyahu and Gantz have appointed themselves the bottleneck for all legislation on every issue

The agreement weakens the Knesset in ways both subtle and obvious, short-term and long-lasting. Gantz’s demand to have his premiership approved in the coming month, even though it begins only in 18 months, locks the Knesset into a 36-month rotation during which neither Netanyahu nor Gantz really need to seek its support.

No-confidence votes are rendered meaningless by the stipulation that neither Gantz nor Netanyahu can run for the premiership after one is toppled in a no-confidence motion.

A nearly empty plenum, due to restrictions against the coronavirus, is seen at the swearing-in of the 23rd Knesset, March 16, 2020. (Gideon Sharon/Knesset Spokesperson)

Huge majorities are required to overcome a Gantz or Netanyahu legislative veto during the six-month “emergency period” — and that emergency period, according to the bills being proposed, could be extended indefinitely. The only thing required to extend it is Gantz and Netanyahu’s joint agreement to do so. As environmental groups have already complained in Hebrew media op-eds, that means that two people have appointed themselves the bottleneck for all legislation on every issue.

The Knesset loses the power to unseat a prime minister, loses the power of the purse since it can no longer hold up the state budget — loses even the power of legislation itself

Since both men are required under the agreement to back the budget, no serious haggling that holds up the budget can take place in the next three years.

In other words, in their bid to ensure the other man cannot back out of their agreement prematurely, Gantz and Netanyahu have constructed a carefully planned straitjacket for the entire edifice of Israeli political life.

The Knesset ensnared by this straitjacket loses the power to unseat a prime minister, loses the power of the purse since it can no longer hold up the state budget — loses even the power of legislation itself.

The agreement is unlike anything Israel has seen before. That much has already been said. But it is strange not only in trapping the Knesset in an unprecedented chokehold; it is strange, too, in lacking any serious mention of a vision for the country or policy commitments beyond the annexation promise to Netanyahu.

It marks a narrowing of the authority of government ministries, of parliamentary debate and negotiations, of the constitutional order itself, and it does so for one reason: as a hedge by each of the two prime ministers against their bottomless suspicion of the other.

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