A guide for the perplexed over Israel’s election and government-formation crisis

Israel has had three elections in a little over a year, all of which failed to return a decisive verdict over who should lead the country.  The last election delivered modest, but clear gains for Prime Minister Benjamin Netanyahu’s right-of-center Likud party and the likely coalition it could form, and slight decline in support for the left-bloc overall.

Yet, because one of the main centrist parties, Avigdor Lieberman’s Israel Our Home party refused to form a coalition with its traditional allies on the right, left-block parties amounted to 61 of the 120 seats in parliament (Knesset).  After polling all the leaders of the various parties, Israel’s President, Reuven Rivlin, was told that the 61 members the center left and leftist parties represent would support Benjamin Gantz of the Blue-White party for prime minister, and thus President Reuven Rivlin turned over the mandate to form a government to him.

Such a government was not formed, however, a national unity government instead.  Along the way, Israel faced what is perhaps its most dangerous constitutional crisis.

So how did this happen?

March 2 vote delivers a deadlock

Gantz, head of the Blue-White party, secured the verbal support of the heads of parties whose members made up the 61-seat required majority to form a coalition government, and thus President Rivlin handed Gantz the mandate to form the next government.

Almost immediately, two insurmountable and interrelated problems ensured Gantz would fail and be forced to return the mandate to Rivlin. Rivlin, who then gave it to the caretaker government led by Netanyahu who still lacked the needed 61-seat majority and would also fail to form a government, throwing the nation toward a fourth round of elections.

First, Gantz had to rely on the vehemently anti-Israeli Arab United List, an amalgam of several smaller Arab parties and the Israeli communist party. This party believes in the dissolution of the Israeli state.  Its members have traveled to Damascus, Ankara and Tehran to publicly meet with Israel’s enemies to declare solidarity with them and forge a common strategic plan to undermine Israel.  Other members of this party regularly call on Arabs to attack Israeli soldiers, and cheer and justify terror attacks on Israelis when they happen.

Until now, these behaviors, not ethnicity, have led every Israeli government to resist including these parties in any government. It would, in effect, hold the Israeli government hostage to parliament members whose stated aim is the destruction of the Israeli state. Second, because of this, during the campaign, the Blue-White party’s official platform was to reject the option of forming a government with the United List.

Right after the election, a number of members of Gantz’s Blue-White Party, such as Zvi Hauser, Yoaz Handel, and Omer Yankelevich, as well as parliament members from other parties such as Orli Levi-Abaksis (Labor), stated bluntly that they must keep their promise and will in no way vote to establish a coalition government beholden to these Arab parties.

Moreover, the Blue-White party was run by the “Cockpit” — the ruling four-person group leading Blue-White (Benny Gantz, Moshe Yaalon, Gabi Ashkenazi, and Yair Lapid). Ashkenazi started hinting that he, like Hauser and Handel, could not violate an important campaign promise and form a government with the United List.  Without the Arab party, Gantz had only about 45-46 members supporting him. With the Arab party, he could count on at most 57 seats.   On paper, the various parties on the left have added up to 61 members, and their leaders all indeed promised to support Gantz.  In reality, the leaders did not speak for all their members and Gantz never had the needed 61 seats to the stand up a coalition.

Fissures emerge in Blue-White 

Gantz had two choices: form a national unity government with Netanyahu, or push the country into a fourth round of elections during the coronavirus crisis. There was no guarantee that another round of elections would deliver a more decisive result, and support of his party was trending downward.

Gantz’s Blue-White party is an amalgam of several smaller movements that vary considerably in their ideologies but share a common goal of trying to oust Netanyahu. The tape bridging the fissures within the party were already stressed, since after three elections frustration with Gantz’s leadership over his inability to decisively defeat Netanyahu was beginning to show.

By March 20, Gantz and Ashkenazi leaned strongly toward seeking a national unity government.  The parameters of agreement had already been made between Gantz and Likud, but several sticking points remained, including who would receive the foreign ministry portfolio. Within Gantz’s party, the faction built on the previous Yesh Atid party led by Yair Lapid and his close associate, Ofer Shelach, refused to countenance forming a national unity government under Netanyahu.

Fearing that Gantz might succeed in forming a unity government, the Yesh Atid faction set a strategy with several leftist parties and the Arab United List party to sabotage negotiations between Blue-White and Likud.

The aim of Lapid’s strategy was not only to sabotage the unity talks, but to ram through two specific pieces of legislation.  The first would apply retroactively to the current process of elections and government-formation to bar any politician indicted from being able to form a government – a move generally understood as a law of attainder personally targeting Netanyahu. The second law was to resurrect a previously tried, but largely unsuccessful, system of direct elections for the prime minister.  The goal of both bills was to derail unity negotiations and force a fourth election in which Gantz would either stand unopposed or against a hastily-named and weak caretaker leader of the Likud.

The rise of a constitutional crisis      

The strategy faced several obstacles.  First, the Knesset speaker had to be part of the plan. The speaker, according to Knesset protocols and tradition, controls setting the legislative agenda like other parliaments and legislatures.

In line with parliamentary tradition in Israel, the speaker of the parliament holds his position as a caretaker until a new government is agreed upon, after which a new speaker is voted in. Indeed, while the new speaker would need to be seated before the Knesset formally votes on the new government, the naming of the new speaker has always been part of negotiations in forming that government.

For Lapid’s Yesh Atid faction, this was a problem.  The caretaker speaker was Yuli Edelstein, a Likud member. Edelstein, of course, refused to use his office to move ahead on the two pieces of legislation designed to ban Netanyahu from leadership. In response, the Blue-White party moved ahead to break established Knesset protocol and precedent: convene the Knesset and force a vote to remove Edelstein from office and replace him with a member of the Blue-White party.

The second obstacle was using the unproven (likely unreal) 61-seat majority to break precedent in Israel ––without forming a government — to launch several parliamentary maneuvers, replace the speaker, and establish new committees and committee heads in order to move the legislation ahead.

Lapid and his ally Ofer Shelach in Yesh Atid assumed that forcing a vote to remove the speaker would obliterate any chance of negotiating a unity government, which then would force the recalcitrant Blue-White members to accept the inevitability of either a narrow government based on the Arab United List or a fourth election.

Edelstein, who supported Prime Minister Netanyahu’s effort to negotiate a national unity government with Blue-White, reverted to parliamentary protocol to buy a few days’ time. He simply refused to convene the full quorum of the new parliament until a new government was agreed upon, arguing that doing so would undermine the process of forming a government.

Lapid and Shelach had anticipated Edelstein’s move. Triggering a serious constitutional crisis, Lapid, Shelach and their allies on the left submitted an appeal to the Supreme Court in Israel to force a parliamentary vote to replace the current speaker and proceed with the two pieces of legislation. The Court, under Chief Justice Esther Hayut, is a highly activist and politically sympathetic to the left.

The chief legal advisor to the Knesset, Eyal Yanun, appealed to the Supreme Court to refuse the case, but his request was rejected. On March 24, Yahun presented a formal brief to the Supreme Court arguing that the intervention of the court in this matter undermined the independence and integrity of the Knesset, but also amounted to gross interference in the political process of negotiating a government coalition.  He argued that as a parliamentary democracy, the formation of a government in Israel is part of the voting cycle that began with the actual voting, but ends only when there is a formal coalitional agreement to form a government. In a parliamentary system, there is no winner or loser or prime-minister-elect or designate after election day. That only happens after the coalition talks are concluded and the outline of a new government is agreed. As such, Yanun argued, coalition talks are inherently and integrally part of the political election process, and any move that seeks to sway or alter the negotiation process would thus represent political interference by the judicial branch in the election process.

The Supreme Court weighed in strongly without any significant legal reference against Edelstein and ordered him to immediately convene parliament and hold a vote to remove himself by the next day. Edelstein stated he could not in good conscience comply with the order and acquiesce in what he believed was a serious violation of the separation of powers. Edelstein also said he could not accept dangerous interference by the judiciary in the political process of choosing a prime minister and negotiating a coalition. He said he could not throw the nation into civil strife by refusing the court’s command outright, and cited Menahem Begin’s decision in 1948 to defer to national unity and not contest the violent attack on the Altalena ship carrying weapons which his faction had acquired for the emerging Israel Defense Forces.  Edelstein resigned his post on March 25 and adjourned parliament until March 29. Within hours, the Court, with questionable legal authority, ordered him to return to his post, convene parliament immediately and hold the vote to remove himself from office by the next day.

By the evening of March 25, Israel was in a full-blown constitutional crisis, stuck in political deadlock while facing the rising coronavirus threat.

The move by Blue-White and the Supreme Court brought Likud to the point at which it was about to break off talks – as the Yesh Atid faction of the Blue-White party had wanted all along.  An even greater constitutional crisis was triggered when the two laws pushed by Lapid and Shelach designed to change the rules of the election-government formation cycle in midstream were passed by the new speaker. It was clear the Supreme Court was sympathetic to the moves by Lapid’s Blue-White party faction to sabotage the negotiations to form a national unity government and was complicit in the attempt to enable parliament to jettison protocol and tradition and pass the two laws.

In a desperate move to avoid a Knesset-Supreme Court standoff, Chief Legal Advisor of the Knesset Eyal Yanun issued a legal ruling that in the incapacitation or absence of the speaker, the parliament could convene under the most senior member of the majority block, namely Labor party head, Amir Peretz.  But as night fell on March 25th, Eyal Yanun’s deal was rejected by right-leaning block, which threatened to boycott the Knesset. Israel was in a severe constitutional crisis.

Israel’s president saves the day 

The President of the State of Israel, much like the sovereign in England, after which the largely ceremonial position is modelled, has little real power but symbolically embodies the nation’s identity and its unity.  Late onMarch 25, President Rivlin spoke to the Israeli people.  He acknowledged the danger of ignoring a Supreme Court order, but appealed to the political leadership to form a unity government, halt ripping open further the wound tearing the nation apart, and address the threat of the coronavirus outbreak.  Almost immediately, the two Blue-White members who refused to join the narrow minority government (Hauser and Handel) sent a blast SMS that they salute the president and will carry out his wish to work toward a unity government. They signaled that they would not vote to support the speaker’s vote or the two laws being pushed by Lapid’s faction –denying Lapid the 61-seat majority needed to carry it out.

The move by Hauser and Handel gave Gantz and his ally in the “cockpit,” Gabi Ashkenazi, the ability to reach out to Prime Minister Netanyahu and pick up the unity talks where they had left off.  By the morning, an agreement had been reached to establish an emergency national unity government.  Gantz would become the new speaker of the parliament, and his party would receive three times as many ministers as the right block in a unity government cabinet, including the important posts of foreign (Gantz), defense (Ashkenazi), and justice ministers (still undecided). The right block would keep the important posts of finance (Katz), interior (Gafni), health (still undecided) and internal security (Deri). Overall, Gantz’ party would get all but 6 ministries.  The prime minister’s position would be rotated.  Prime Minister Netanyahu was to serve until October 2021, and then Gantz would serve for the remaining 18 months.

In an ironic twist, the Likud faction, along with Gantz’s faction of the Blue-White Party, with the support of Gabi Ashkenazi’s faction and the two other Blue-White members from Moshe Yallon’s faction (Hauser and Handel), used the Supreme Court order to convene the parliament, and used the legal advice given by chief legal advisor of the Knesset, Eyal Yanun, to call parliament into session under Amir Peretz.  On March 26, with blinding speed, they forced a vote to elect Benny Gantz as Knesset speaker, triggering the process of establishing the unity government.  Within minutes, the Yesh Atid faction under Lapid, and the Telem faction under Moshe “Bogie” Yaalon, announced the dissolution of the Blue-White party and boycotted the Knesset vote on speakership.  With the right-leaning block on board, along with Gantz’ Hosen faction and Gabi Ashkenazi’s faction, Gantz was elected speaker by a sizeable majority.

The process of working out all the ministers – the Blue-White Party has more ministers to name than it has party members at this point – will take several more weeks, and a new Israeli government is unlikely to formally take office until after the Passover holiday in early April. But the parameters of division are agreed upon and the formation of the national unity government with a sizeable majority is a virtual certainty at this point.

Late on March 29, even the Labor party under Amir Peretz, Orli Levi-Abaksis (who like Hauser and Handel had also said she would not form coalition with the United List) and Yizthak Shmueli announced they too would join the national emergency government.

Dealing with the aftermath

The move by Gantz and Ashkenazi, with the maneuvering by Hauser and Handel, reestablished the center of Israeli politics and brought together about 70% of the population. And it returned Israeli politics back to its processes and stability.  Appealing to patriotism, Gantz said he placed nation over person, and did his part to restore national unity in order to deal with the grave coronavirus threat and other serious threats Israel faces.

Still, the far-left and the Arab United List’s efforts to upend the political process in Israel have left scars as serious and urgent as the other threats Israel faces.

First, the two laws pushed by Lapid’s faction damaged the common understanding of the rule of law. The laws proposed to ban Netanyahu from being legally able to form a government because he is under indictment would upturn current law in Israel under which an indicted official can remain in office not only until his conviction, but even after until all his appeals have been exhausted. Not only is it a law of attainder (barred explicitly in the US Constitution), but a retroactively applied law.  The second law, using the disqualifying principles of the first law, tried to rig the next election by crippling the opposition.

Moreover, the indictment, which is the event that “triggers” the first law’s application, is highly problematic. The legal case against Netanyahu indicts him for something which has never been a crime and is very murky in its meaning and essence.  It is quite possible, even likely, that such a problematic indictment will be thrown out.

Second, the Supreme Court, appealing to the rule of law, erased separation of powers of the judicial and legislative branch, placed itself above all other branches of government, and treaded dangerously close (if not over) the line of establishing an unaccountable ruling council of judges.

Unlike in the United States, there are no real democratic checks on the courts in Israel. Justices in the Supreme Court and lower courts are traditionally self-appointed by the courts themselves.  Existing courts vet and name the candidates to fill vacancies, and then approve them among an extremely limited pool of candidates determined by a government committee. It is a self-preserving, closed circle with no legislative checks and balances.

The behavior of the Supreme Court in Israel represents the realization of the scenario against which one of the most respected and greatest of America’s judicial minds, Judge Learned Hand, had warned: “a tyranny of the courts over the will of the people.”

Opponents of the Supreme Court’s moves– which was half the political spectrum — realized there was no legal recourse to appeal the constitutionality of these laws. The judicial branch positioned itself as a political opponent of half of Israel, which would be stripped of any rights to legally appeal since the results were predetermined and there was no authority higher who could arbitrate.

The debate over the role of the courts in Israel and their politicization was brewing even before this election. It has now been placed on the back burner given the national unity government and coronavirus crisis, but it will rise soon again and will eventually again be acute.

As a result, the most important appointment going forward as the new Israeli government takes shape will be the Justice Minister, who will need to consider how to address growing political activism by the Israeli courts.

It is perhaps the most difficult, but urgent task of this unity government to preempt the eruption of another judicial crisis. It must effectively restore the impartiality of the courts, remove them from politics, revamp the process of choosing judges and justices with democratic checks and accountability. Judicial roles must be defined more properly in the context of reestablishing the integrity, independence and equal power of the parliament as the expression of the will of the people.