Under normal circumstances, the Israeli president’s primary constitutional role takes only a matter of days.
Following elections, after hearing recommendations from each party that won Knesset seats regarding who should be tasked with forming the next government, the president swiftly entrusts the lead candidate with the mandate to do so. And there ends the president’s direct involvement in Israel’s politics for at least a few years.
These, however, are not normal circumstances.
When President Reuven Rivlin welcomed representatives of each elected party to his residence on Sunday and Monday it had not been years since that scenario had last played out, but just five months. With Prime Minister Benjamin Netanyahu failing to form a majority coalition after Rivlin tasked him with doing so following April’s elections, Israelis were sent back to the polls and the president back to his key constitutional job.
But this time, unlike the last, and unlike any Israeli election for decades, Rivlin faced a quandary that has forced him to expand his role beyond the making of a simple either/or decision and to enter the furnace of Israeli politics, where one of the fiercest battles for control of the country is being fought.
It has been 35 years since a president has encountered the kind of political crisis Rivlin is now facing in the wake of the September 17 elections, which saw the Likud and Blue and White parties almost evenly matched and, with them, the right and center-left blocs all but tied.
As expected, Blue and White, which won 33 seats, recommended party leader Benny Gantz be tasked with forming the next government. It was joined by Labor, the Democratic Camp and 10 of the Joint Lists’s 13 MKs, giving Gantz 54 recommendations in total. Likud’s 32 seats along with the guaranteed support of all right-wing parties gave Prime Minister Benjamin Netanyahu 55 recommendations. But with Yisrael Beytenu party leader Avigdor Liberman remaining determined to force the creation of a broad, liberal national unity government, and not giving the backing of his eight-seat party to either, both were left short of a 61-seat majority in the 120-seat Knesset.
The last time this happened was in 1984, when the Labor party (then called the Alignment) led by Shimon Peres won 44 Knesset seats, and the Yitzhak Shamir-led Likud won 41 seats, but neither gained a majority of recommendations, forcing the two to cobble together a national unity government in which they rotated the premiership.
Rivlin, who has so far held off making a decision on whom to task with forming a government and may wait until the final deadline on October 2, appears to be following the example of then-president Chaim Herzog who personally brokered the deal between Peres and Shamir to create the first rotation government in Israel’s history.
If 61 or more of the 120 MKs had recommended one candidate, Rivlin would almost certainly have entrusted that candidate with the task of building a coalition, as he did when Liberman backed Netanyahu in April. But with no one receiving 61 this time, there is no clear guideline as to how Rivlin must decide whom to choose, and few legal limitations.
By law, the prime-minister-designate can be any of the 120 newly elected MKs. She or he does not have to be the head of the largest party, or even the head of a party at all.
Once a candidate is chosen by the president, that individual has 28 days to present a coalition to the new Knesset and win a vote of confidence. The president is allowed to extend that period by up to 14 days. If the candidate fails, the second-most likely candidate is given a shot at forming a coalition.
Should the second candidate fail, new elections are called, unless 61 Knesset members write to the president and ask him to assign the task to a particular Knesset member.
It is also completely within Rivlin’s constitutional purview to offer both Gantz and Netanyahu an ultimatum: agree to a national unity government, dividing the premiership by rotation, or see your opponent get the first chance at forming a government and being premier.
While still deliberating over his decision, the ever-affable Rivlin has so far succeeded in hosting a meeting between Gantz and Netanyahu on Monday evening, which he called a “significant step forward,” persuaded the Blue and White and Likud negotiating teams to meet, which they did on Tuesday, and will host a dinner at his residence for Gantz and Netanyahu on Wednesday evening.
But even if he can get their agreement to form a unity government together, Rivlin will nonetheless still have to task either Netanyahu or Gantz with forming the government and therefore being the first of the two to serve as a rotating prime minister.
And this is where it looks like Rivlin’s charm may run out.
Gantz has insisted that he head any unity government and ruled out sitting with Netanyahu due to the latter’s pending indictment on graft charges that will be likely filed after a hearing with the attorney general — a hearing scheduled to begin, somewhat astonishingly, on the very day Rivlin must make his decision. And after his Monday meeting with the premier, the Blue and White chair told his party members that he will keep his promise to the voters not to let Netanyahu remain prime minister.
Netanyahu has strenuously denied the allegations against him and claimed the investigations are the result of a witch hunt by political rivals, the media, the police and state prosecutors to force him from office.
At the same time, it is widely believed that had Netanyahu won the election with a clear majority, he would have sought immunity from prosecution via a Knesset vote and then sought to enact legislation that would block the Supreme Court from overturning any such Knesset decision. In the final days of the campaign, Netanyahu was evasive when asked whether he would indeed seek to limit the powers of the Supreme Court.
The only conceivable backtrack that Gantz could make — although Israeli politics is often plagued by the inconceivable — would be to agree to a unity government with him serving as prime minister and for Netanyahu to replace him only if he is cleared of the charges by then. He will surely not back immunity for Netanyahu nor will he agree to let him serve as prime minister under indictment.
For Netanyahu, that could create a political challenge on top of the legal ones he faces. According to Israeli legal precedent, while a prime minister can continue serving under indictment and even while on trial, up until the point of conviction in the country’s highest court, a minister must resign after charges are handed down, and Netanyahu would have to resign if serving as a minister under Gantz.
Regardless of the legal considerations, the president will have to appoint the person he believes has the best chances of building a coalition. And here he is faced with a conundrum: more MKs have recommend Netanyahu for prime minister, but Gantz’s Blue and White is the largest party.
The president has repeatedly stressed that “the will of the people” must be the main basis for his decision. But which candidate better represents that will? The person whom more people directly chose, or the person with the tacit backing of more?
Rivlin himself has said both options are viable.
“The question is,” he told students in Beit Shemesh before the April election, “what does the president do when there is no majority for a single person? What should he take into account? Perhaps the biggest party? It may be a question of how many MKs support one candidate as opposed to how many support a different candidate, and whether the MK who received the most support has the best chance of persuading others to form a coalition with him.”
For now, Gantz and Netanyahu will be working on persuading Rivlin himself.