Israel has a government… with a caveat

After three elections and a year, Israel finally has a government.

The leading opposition candidate, the former chief of staff of the Israel Defense Force (IDF) Lieutenant General Benjamin “Benny” Gantz, who leads the Blue-White Party, and the current Prime Minister, Benjamin “Bibi” Netanyahu, who leads the Likud party, signed a national unity government agreement. Together, this government will command a vast majority, among the largest in Israeli history, especially if the second main right-leaning party, the Yemina party under Naftali Bennett and Ayelet Shaqed, are included, the terms of which are currently still being negotiated.

However, the Israeli Supreme Court may unravel the agreement.

Leading up to the agreement

It was politically imperative to form a unity government. First, all polls indicated broad support for the establishment of such a government in a time of national emergency due to the COVID-19 crisis and its economic aftermath. The nation also faces several momentous decisions in the coming months on national strategic and security issues, including the annexation of parts of the West bank per the Trump peace plan, and the increasingly threatening posture of Iran.

Second, the only realistic alternative to a national unity government was a fourth round of elections – with no promise of a more decisive result than the last three — to be held in the midst of a plague.  Since neither Gantz nor Netanyahu were eager to assume the responsibility for such a result, both essentially locked themselves onto a path of national unity several weeks ago.  Three critical swing votes on the left (Tzvi Hauser, Yoaz Handel, and Orly Levy-Abaksis) made it clear that they would not support any move undermining a unity government, ensuring the two major parties couldn’t form a narrow right-leaning or left-leaning coalition.

Still, strong voices on the left agitated to sabotage the formation of a unity government, preferring (unrealistically, since the votes in parliament were simply not there) a narrow left-wing government anchored to the anti-Zionist Arab parties or a fourth round of elections.  The left half of the Blue-White Party bolted and began bitterly opposing all moves made by Gantz to form a unity government.  In abandoning Gantz during the unity talks, they undercut his leverage, allowing Netanyahu to secure more parity of power and personnel.

The nature of the government which emerged

Since the national unity government is built on necessity rather than ideological convergence or trust, it enumerates the division of portfolios, responsibilities and administrative processes, including scenarios of dissolution.  The important initial clauses (clauses 1-9) outline the process of guaranteeing that Netanyahu will serve the first 18 months as prime minister, and Gantz the second 18 months, and that neither party can go back on the agreement through parliamentary maneuvers.

The agreement is unprecedented in its detail of such questions of portfolio and process, and even ambassadorships, far beyond the question of the prime minister’s portfolio. For example, not only are the distribution of portfolios in both ministries and Knesset committees assigned by party affiliation but in some cases, even specific individuals are named.  For example, in Clause 26, Tzvi Hauser was specifically named to become both the Blue-White (Gantz) party representative on the Judges Committee (the committee which appoints judges in Israel), but he is named also as the chairman of the powerful Defense and Foreign Policy Committee in the Knesset.  Also, since Gantz and Netanyahu are both prime ministers in terms of protocol in this government, the management of their homes and estates are also detailed extensively in the agreement.

The government is described in the agreement as a “national emergency government” to deal with the three key issues of plague, economic crisis and peace plan, and as such the agreement places a six-month moratorium on any significant legislative initiatives which could change the status quo other than those dealing with the three main crises outlined in the agreement (Clause 3).

The initial government will have 32 ministers, to be expanded to 36 after a six-month period (clause 12) — one of the largest ever in Israel. The government is large because both Gantz and Netanyahu had to provide for their allies within their blocks to secure support.

The contrasting lack of detail outlining a platform of substantive policy to deal with any of the main issues Israel faces is striking.  Even the passages of the agreement which relate to the touchy but critically important question of annexing parts of the West Bank (clause 29) skirt all substantive commitments and instead focus on the processes and timelines by which this government will make that decision.

A caveat

Despite this agreement –which would impress even the most picayune lawyer—Israel is not out of the woods yet.

Immediately after the national unity coalition agreement was signed, opposition parties and movements submitted several petitions to Israel’s Supreme Court, the High Court of Justice (HCJ), to annul the agreement. They argued that an indicted Prime Minister (akin to an impeached but not convicted US president) is incapable of holding the office of premiership.  Under the presumption of innocence, there is no law currently barring an indicted individual from holding the premiership in Israel.  Nor has a sitting Prime Minister been indicted, so there is neither law nor precedent here.  Even the appeal to pre-1948 British law – from which much Israeli law originates — offers little precedent.

There have been several previous attempts to submit such petitions but they were summarily dismissed as being “premature.”  This time, the Chief Justice, Esther Hayut, refused to dismiss the appeals, and has instead ordered both the current caretaker government under Netanyahu, and Lt. Gen. Gantz, to submit a formal response by April 28.

The fact that the Supreme Court will hear this case suggests Chief Justice Hayat may lead the court to rule to unravel the agreement, force the country into a fourth election cycle while barring the leader of the major party (Netanyahu) from running. In essence, the Supreme Court may legislate through fiat the law of attainder against Netanyahu which the opposition was unable to pass. Such action would throw Israel into a severe constitutional crisis.

The court order to provide a rationale against the appeals on April 23 was phrased in the legal equivalent of a warning. As such, the HCJ’s intervention is not to be ruled out, despite the severity of the consequences of its doing so, including an unprecedented constitutional crisis while Israel copes with COVID-19, its economic aftermath, the Iran threat, and the US peace plan and annexation – not to mention the dangers of holding a fourth election during a plague.