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Analysis

Stability or straitjacket? The Netanyahu-Gantz coalition deal goes to court

Justices will hear petitions against an indicted lawmaker’s ability to rule and the rest of the disputed pact, which would usher in a long-sought government but weaken the Knesset

Haviv Rettig Gur

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

Blue and White election campaign poster showing party leader Benny Gantz and Prime Minister Benjamin Netanyahu with a Hebrew slogan reading 'Netanyahu cares only for himself,' February 18, 2020. (Miriam Alster/FLASH90)
Blue and White election campaign poster showing party leader Benny Gantz and Prime Minister Benjamin Netanyahu with a Hebrew slogan reading 'Netanyahu cares only for himself,' February 18, 2020. (Miriam Alster/FLASH90)

The High Court will begin deliberations Sunday on the constitutionality of the coalition deal struck between Blue and White and Likud last month.

In two days of hearings, 11 judges will hear eight separate petitions that have been filed in order to stymie the political pact, and their rulings could make or break the unity deal, a byzantine contract seemingly borne of deep distrust harbored by each party against the other.

The petitions, filed by advocacy groups, concerned citizens and political opponents of the two parties, cover three big questions: Is the coalition agreement between Likud and Blue and White legal? Is the legislation now being advanced in the Knesset to alter Israel’s constitutional order in order to allow for the deal’s implementation constitutional? And is Prime Minister Benjamin Netanyahu fit to be appointed premier once more, despite his corruption indictments?

If the deal is not struck down, it will pave the way for Israel’s first elected government in over a year.

But if the expanded bench rules Netanyahu unfit to be prime minister, Israel will almost certainly go to new elections, with Netanyahu running explicitly on receiving the public’s support to change the law in order to overcome the judges’ ruling. According to polls, he may well succeed.

Likud has warned it will seek new elections if the court strikes down any part of the deal, though whether it goes through with the threat may depend on what exactly the court decides.

The hotly anticipated hearings, which kick off at 10 a.m., will be among the first-ever publicly broadcast as part of a pilot project launched last month to make the High Court’s proceedings more accessible to the public.

Three laws in three days

Three separate laws are being changed by the coalition deal, two of them the constitutional “basic laws,” the Basic Law: The Government and the Basic Law: The Knesset, which lay out the role and powers of those institutions. (The third is the Party Financing Law, which will see a minor adjustment to allow the two-seat Derech Eretz faction to obtain public financing.)

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)

The amendments to all the laws are advancing in the Knesset as a single bill, which passed the first of three required plenum votes last Thursday and is scheduled to go up for final votes between Tuesday and Thursday.

It must become law by Thursday, because that’s the deadline for the Knesset to name a prime minister (or two) from among its ranks or call new elections. The Knesset is unlikely to approve the new government if the legislation ensuring the rotation deal between Netanyahu and Gantz hasn’t become law.

A ’two-headed’ government

The new law advances two dramatic constitutional changes, each with its own set of problems. First, it creates a new, bifurcated regime that the coalition agreement calls a “two-headed government.” Two prime ministers will be voted in by the Knesset in a single vote at the start of the new government’s term, one to serve as the sitting prime minister and the other as a co-equal “alternate prime minister.” They will rotate half-way through the term without requiring another Knesset vote of approval.

This is almost certainly the most constitutionally problematic of the many changes introduced by the new legislation. Born in Netanyahu’s demand that he continue to receive the special immunities granted to a sitting prime minister, even as his corruption trial advances and even when Gantz rotates into the prime minister’s chair, the legislation elevates the “alternate prime minister” to the same legal standing as a full-fledged prime minister for the entire duration of the government.

Knesset members stand for a two-minute siren on Memorial Day, Yom Hazikaron, April 28, 2020. (Yaniv Nadav/Knesset)

But it does more than that. The new laws expand on the “two-headed” government to form what might reasonably be called two actual governments. It divides the cabinet into legally recognized “blocs,” each led by one of the prime ministers to which each bloc’s cabinet ministers are legally answerable. In fact, because of Gantz’s fear that Netanyahu will simply fire his bloc’s ministers whenever he finds it convenient to do so, the new law states that each bloc-leading PM has the exclusive power to fire the ministers of his bloc.

This two-headed prime ministership has no precedent among the world’s democracies. Mention was made in last week’s Knesset debate about the brief spell in 1993 when Cambodia, seeking to avert a civil war in the wake of Vietnam’s withdrawal of its military occupation from the country, appointed two coequal prime ministers; it was not a helpful precedent.

The constitutional problems are many, as are the practical ones.

The proposed setup violates a basic tenet of the current system in a way the profoundly weakens the institution of the prime minister. Article 4 of the Basic Law: The Government stipulates that cabinet ministers are answerable to the prime minister, who is in turn answerable to the Knesset. Under the new rules, only half the government would actually be answerable to the sitting prime minister.

Many unanswered questions arise: What happens if a minister decides to switch loyalties to the other side, as an MK is allowed to do in the Knesset? Can they? Which side would then have the power to fire them?

An ’emergency’ government and a frozen Knesset

The coalition agreement also delivers several serious blows to the Knesset’s powers.

Prime Minister Benjamin Netanyahu in the Knesset on April 30, 2020 (screen capture via Knesset website)

The agreement proclaims the first six months of the new government’s term to be an “emergency government” — a period that can be extended without limit by Gantz and Netanyahu.

The term “emergency government” has no legal significance, but it’s used to justify some startling and drastic steps. During the “emergency” period, Netanyahu and Gantz commit to advance no legislation that isn’t related to the coronavirus crisis or is approved by both men.

That is, the two co-heads of the executive branch promise each other in writing to freeze the legislature’s power to legislate on all issues without their explicit approval.

The agreement also limits the Knesset’s financial leverage over the government. Besides the stipulation that if either side holds up voting for the budget, the Knesset must be dissolved, the agreement also calls for a two-year budget. Israeli governments have favored two-year budgets in recent years as a way to avoid politically damaging budget fights at the end of each fiscal year. But Israel is the only democracy on Earth that has adopted the practice. And each time it happens, the two-year budget law is passed as a one-off measure temporarily suspending the basic laws’ requirement for an annual state budget.

Right-wing activists protest against the Supreme Court and in support of Prime Minister Benjamin Netanyahu, outside the Supreme Court in Jerusalem, April 30, 2020. (Yonatan Sindel/Flash90)

It is this last part — the Knesset’s penchant for temporarily suspending constitutional provisions — that has already drawn the High Court’s ire in the past. The court has repeatedly demanded that basic laws either be amended or adhered to.

Finally, the “emergency” period will see a freeze on all senior appointments in the public service, including many key positions now being filled only in an interim capacity, such as the commissioner of the Israel Police and the state attorney. In some cases this freeze will mean violating laws that require interim commissions to last no more than three months.

There’s a great deal more in the coalition agreement and the new legislation that may trouble Israelis and draw criticism from the court. For example: the incredibly high 75-seat majority (in a 120-seat Knesset) demanded to make changes to the new law, or the weakening of the Knesset’s power to vote no-confidence in the prime minister.

Pros and cons

As the court begins to mull these many dramatic changes, the proponents of the new deal have advanced one overarching argument. It is the bottom line of the legal opinions submitted to the court last Thursday by the Blue and White party and Attorney General Avichai Mandelblit.

While acknowledging the problems and pitfalls that may lie ahead, Mandelblit urged the court to let the deal stand in the name of political stability. The new unity coalition holds out the very real possibility that a stable government will be formed at long last, after 18 months of political deadlock and amid a dramatic economic and health crisis.

The Knesset’s legal advisers, who will represent the parliament in the High Court hearings, told lawmakers last week they would make the same argument before the judges, insisting that the changes, even if problematic, will usher in a broad and effective government in fraught and unstable times, a purpose that justifies the unprecedented steps taken in the legislation.

People shop for food at the market in Ramle on May 1, 2020. (Yossi Aloni/Flash90)

And the opponents?

Based on the petitions before the court and the warnings of the Knesset’s attorneys in the committee debates last week, they will paint a dark picture of democracy in retreat and a weakening of the most vital institutions of the state.

‘Black flag’ protesters demonstrating outside the Supreme Court in Jerusalem, April 30, 2020. (Courtesy of the ‘black flag’ protest leaders)

They will argue that the changes weaken the Knesset, subjecting some of parliament’s most basic powers — the requirement that a serving prime minister always have the parliament’s confidence, the right to hold up the government’s budget — to an effective veto by the two prime ministers.

They will argue, too, that the constitutional changes weaken the prime minister, who for the first time in Israel’s history won’t control half his government.

They will also question the “emergency” justification, insisting that the coronavirus crisis appears to be receding and the economic crisis it is leaving in its wake, while painful, is not unprecedented. It’s not worse than the austerity economy imposed by the government in the 1950s, or the hyperinflation of the 1980s, neither of which led to a similar suspension of Israel’s constitutional order.

And finally, they will question the claim by Mandelblit, Likud and Blue and White that the new agreement will deliver political stability. The checks and balances between Netanyahu and Gantz have become a constitutional straitjacket for Israeli democracy as a whole — but still won’t end the distrust between the two men or ensure fulfillment of the deal. Loopholes remain by which Gantz may yet be denied his premiership.

Israelis protest against Prime Minister Benjamin Netanyahu and Blue and White leader Benny Gantz, at Rabin Square in Tel Aviv on May 2, 2020. (Miriam Alster/Flash90)

If the emergency is receding and political stability remains unlikely, are the deal’s many strange constitutional compromises still tenable?

Questions

The greatest problem with the new deal may be its complexity. Adding new layers to a country’s democratic order necessarily introduces unexpected consequences and unanswered questions. While the court is unlikely to strike down the deal by dint of it being too complicated, critics may point to its complexity as an argument against it providing long-sought political stability.

The new law says that a ministry can now have two ministers at a time, partly as a way to expand the number of posts Netanyahu can offer his right-religious allies after giving half the cabinet over to Gantz. But how do two individuals co-run a single ministry? What happens if they disagree or issue contradictory orders?

What are the powers of the freshly-installed interim PM appointed after the other side’s betrayal? Are they limited to the restricted powers of a normal outgoing government?

A basic principle of democratic regimes holds that the rules of the game should be knowable. The fact that fundamental changes to the rules of Israel’s democracy are being made as spur-of-the-moment political stopgap measures points to a political culture that does not respect the structures of that democracy, or the seriousness and complexity of what is being undertaken.

Israeli attorney General Avichai Mandelblit, left, with president of Supreme Court Esther Hayut, at Bar Ilan University. March 4, 2020. (FLASH90)

It’s hard to predict what the court will decide. Fearing the worst, Netanyahu has threatened (via plausibly deniable associates) to force new elections if the court strikes down any part of the deal. The threat may work — or it may backfire.

Even assuming Netanyahu is right in thinking the justices dislike him personally and want to unseat him, they won’t achieve that by striking down the agreement. If the court believes another Netanyahu term is in the offing regardless of its decision, it may well choose a Netanyahu term earned decisively and honestly at the ballot box over one acquired through the painful and perhaps irresponsible constitutional contortions introduced by the agreement with Gantz.

In the end, whatever the court decides, the questions being posed to the court this week must be taken up by the public. The three elections of the past 13 months have been a long-running, indecisive referendum on Benjamin Netanyahu. No one in the political system trusts the man, but many believe his achievements and strengths outweigh his deficiencies. Does that distrust, and Gantz’s corresponding fear of betrayal, justify the dramatic constitutional changes now on the docket?

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