AnalysisHeard the one about President Netanyahu, with full immunity?

Up against the clock and the constitution, new coalition is far from a done deal

9 days remain for Netanyahu and Gantz to form government. As they rush to alter Israel’s constitutional order, and new loopholes become evident, 4th election is still very possible

Haviv Rettig Gur

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

A protester against the coalition agreement between Benjamin Netanyahu's Likud and Benny Gantz's Blue and White parties, in Tel Aviv on April 24, 2020. (Tomer Neuberg/Flash90)
A protester against the coalition agreement between Benjamin Netanyahu's Likud and Benny Gantz's Blue and White parties, in Tel Aviv on April 24, 2020. (Tomer Neuberg/Flash90)

On April 20, many Israelis earnestly believed the deal was done. Benny Gantz and Benjamin Netanyahu, after 18 months of electioneering and three rounds at the ballot box and campaigns of unprecedented vilification, had signed a coalition agreement.

Some praised the agreement. About one in six Israelis told pollsters they would vote for Gantz again as he moved to join a Netanyahu-led rotation government. Some decried it, especially Gantz’s former allies in Yesh Atid and Telem, as well as many right-wing activists angered at Gantz’s haul of cabinet posts and vetoing of the right’s judicial reforms. But the consensus held that the deal was at least concluded.

And not a moment too soon. Just 17 days remained of the 21-day period for forming a government, after which a fourth election would be forced on all parties.

Then a week passed, which Israel’s political class spent in intensive reading of the 14-page single-spaced and sometimes cryptic agreement. While some of the agreement’s stipulations were known before the signing, the final document presented a picture that gave even Blue and White and Likud MKs pause.

Knesset Speaker Benny Gantz on April 20, 2020 at a Memorial Day ceremony at the Knesset. (Flash90)

The agreement is consumed by Netanyahu’s and Gantz’s shared conviction that they will be betrayed by their new partner at the first opportunity. It responds to that threat by altering Israel’s constitutional system in fundamental ways, nearly all of them at the expense of parliament — for example, granting the prime minister and “alternate prime minister” a legally binding veto on Knesset legislation; appointing a new prime minister halfway through the government’s term without requiring the Knesset’s approval; creating two legally binding political “blocs” within the cabinet, each headed by Netanyahu and Gantz, respectively, who alone can fire ministers from their bloc; and requiring an astoundingly high 75 votes in the 120-member Knesset to change the laws back to their original form.

That complicated web of amendments is lumped together into a single bill that on Monday passed in a special Knesset committee established for the sole purpose of preparing the bill. It now goes to the first of three plenum votes (with another round in committee) to become law.

The clock is ticking. Fearing that the legislative timetable may be too slow to make the changes in time to avoid a fourth election, the Arrangements Committee also temporarily altered the Knesset’s bylaws on Monday to allow for plenum votes on Sundays and Thursdays until the end of next week.

Crunch time

But time is shorter than it seems. Just nine days remain until the May 7 deadline for calling new elections; just six of those days can be used for plenum votes.

In this February 16, 2020, photo, Prime Minister Benjamin Netanyahu chairs the weekly cabinet meeting in Jerusalem. (Gali Tibbon/Pool via AP)

And though they are being advanced at breakneck speed, with almost no public or parliamentary debate, the constitutional changes alone are only part of what needs to happen in that time frame.

Before Netanyahu and Gantz can swear in their new government, they must know who’s in and who’s out.

Netanyahu faces anger among his right-wing allies for promising Gantz a number of cabinet posts that is equal to those of his own right-wing alliance, leaving six-seat religious-Zionist Yamina without any meaningful chance of significant influence in the coming government. Yamina has threatened to bolt to the opposition, and may even carry out the threat.

Netanyahu personally detests Yamina’s leader Naftali Bennett (the feeling is mutual), but won’t break up his right-religious bloc, which has backed him loyally through three consecutive elections, until he is certain he won’t need it again for a fourth election in August.

He won’t make a decision on what cabinet posts to hand Yamina (angering his own Likud contingent if he is too generous) until the legislation passes in the Knesset — and, crucially, survives several High Court challenges.

Defense Minister Naftali Bennett (L) of Yamina speaks to Prime Minister Benjamin Netanyahu during a meeting with leaders of right-wing parties at the Knesset in Jerusalem, March 4, 2020. (Yonatan Sindel/Flash90)

Six petitions against the new laws were filed in the High Court last week, and the responses from Likud and Blue and White came this week. The court initially indicated it would not begin to consider the constitutionality of the laws until they are actually law. But on Tuesday, the court announced it would expedite the hearings and begin debating the petitions against the coalition deal — and against an indicted Netanyahu returning to the prime minister’s chair — starting Sunday.

A complicated series of events and decisions, each a political domino dependent on all the others, must take place before the 35th Government can come into being.

New discoveries

Meanwhile, the agreement may yet be felled by less urgent concerns. Even with all the safeguards built into the coalition deal, the parties to the agreement are still discovering new loopholes as the days go by, loopholes that could upend their calculations even at this late hour.

President Reuven Rivlin’s term ends in July 2021, just three months before Gantz is set to begin his own term as premier, and Netanyahu may well run to replace him.

The presidency may be an especially attractive option for Netanyahu as a concluding pinnacle for a long career in the public eye. It would allow him to bow out of public life detached in his final years from the grime and scuffle of parliamentary politicking, and cement his standing, at least in the eyes of the half of the nation that consistently votes for him and his bloc, as a national icon.

President Reuven Rivlin (C) and Knesset Speaker Yuli Edelstein arrive at the swearing in ceremony of the 23rd Knesset (Haim Zach/Mark Neyman/GPO)

But there’s another reason Netanyahu may want to run for president. Since the president is a key constitutional check on the courts, with the power to pardon convicts and commute sentences, articles 13 to 15 of the Basic Law: The President of The State grant extraordinary immunities from prosecution throughout the seven long years of a president’s term. A court can’t even summon the president to testify against his or her will.

And if Netanyahu makes the jump, then-“alternate prime minister” Gantz will suddenly discover just how dependent he is on his rival. The coalition deal stipulates that whichever of the two men isn’t serving as prime minister during the rotation period will hold the newly created post of alternate prime minister. It stipulates, too, that if Netanyahu cannot serve as alternate prime minister for any reason whatsoever, then Gantz won’t be able to serve as actual prime minister. A President Netanyahu would thus reset the deal, and Netanyahu’s successor as Likud leader would only need 61 Knesset votes to step into the Prime Minister’s Office and leave Gantz stranded on the sidelines.

And another startling loophole: It may not be Gantz’s old enemy Netanyahu who fells him, but his new ally-turned-enemy, Yesh Atid leader Yair Lapid.

The new laws require an astonishing 75 MKs to overturn them. The number was carefully chosen. It lets the combined 78 MKs of the right-religious bloc and the Gantz-led bloc of Blue and White, Labor and Derech Eretz vote together to change the rules of the rotation agreement down the road, but does not allow either a Netanyahu-led right or a Gantz-led opposition to do so alone.

Then came Monday’s Arrangements Committee meeting, and an extraordinary speech by Lapid in which he declared that Netanyahu would have the votes to change the agreement halfway through — because he would have Lapid’s own 16-seat faction to add to his 59-seat bloc.

Yesh Atid leader MK Yair Lapid visits a protest by the self-employed calling for financial support from the government amid the coronavirus pandemic, outside the Knesset in Jerusalem on April 19, 2020. (Yonatan Sindel/Flash90)

If Netanyahu decides to betray Gantz “in a year,” Lapid said, “he can turn to me.”

Lapid’s statement was jaw-dropping, but also entirely rational. Lapid explained that his support would come at a cost: canceling the entire raft of legislation now being pushed through the Knesset, which the Yesh Atid leader has argued undermines Israeli democracy.

It also makes sense politically, though it took all parties, including Lapid himself, a full week of contemplating the new political map to realize it. From the moment their paths parted, Lapid and Gantz became rivals not merely for national leadership but for their own overlapping constituencies. To make a fool of Gantz while reversing the “anti-democratic” constitutional changes would be a double win for Lapid, a victory that would be worth the cost of helping Netanyahu in his latest nimble betrayal of a political partner.

Known unknowns

The timeline, then, is tight and dotted with obstructions. But the greatest obstruction may not be the two aspiring prime ministers themselves and their mutual distrust; the nation’s highest court is set to review their drastic, fast-moving rejiggering of Israel’s constitutional order. Could it disrupt their best-laid plans?

Netanyahu certainly believes so. One of the key articles in the coalition agreement stipulates that if he is prevented from serving as prime minister, or even as “alternate prime minister” in 18 months, then both he and Gantz agree to force a new election.

Illustrative: Supreme Court President Esther Hayut (C) at 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)

This is an explicit threat directed at the court: If you intervene, the political class will force a fourth election and openly blame it on you.

It’s a difficult position for the court. The right has hammered away at the legitimacy of its decisions for years, arguing it has egregiously overstepped its bounds and become the most activist court in the world. Netanyahu has already shown his next election campaign will explicitly accuse the court of playing politics, of attempting to override the will of the people as reflected in a coalition deal between a large majority of the people’s elected representatives.

But should that threat silence the court while the Knesset surrenders many of its powers to rein in the government, to deny it budgets and to approve its most vital decisions?

The simple answer is that no one really knows what the court will do. The changes are being made to constitutional Basic Laws; they are theoretically harder to strike down than regular laws, though in Israel’s haphazard constitutional order many of them can be amended by a simple Knesset majority. The changes are so dramatic, and being carried out so swiftly, that it’s hard to find a precedent that might indicate how the court will react.

The hearings on the laws will only begin on May 3, according to a court statement on Tuesday, just four days before the Knesset must produce a government or call new elections. That deadline is fraught, but not absolute. Even if the Knesset is forced to call new elections, it can still cancel those elections in the days that follow — if everything falls into place.

On the eve of Israel’s 72nd Independence Day, 18 months after the last fully functioning Knesset dissolved itself, amidst an unprecedented health crisis and economic downturn, and eight days after the signing of a coalition agreement, there is still no certainty that Israel has reached the long-awaited safe harbor of a stable government.

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