The Real Constitutional Problems with Israel’s New Government

This week, the Israeli Supreme Court considers various arguments questioning the legality of the recently formed governing coalition. Evelyn Gordon writes that any outcome would be preferable to an overreaching court invalidating the coalition agreement and precipitating a fourth election. Nevertheless, she has serious concerns of her own about the agreement’s terms, which are convoluted even by the usual standards of these documents:

The biggest problem [with the agreement is] the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, the Blue and White chairman Benny Gantz. Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. [But] they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

The best-known example is the ill-fated experiment with directly electing the prime minister in the 1990s, which was repealed a decade later. . . . A less well known but particularly salient example is a seemingly innocuous reform enacted in 2016. The rule until then was that after an election, the longest-serving Knesset member would temporarily become Knesset speaker until a new government was formed, after which the government would choose a permanent speaker. Under the amendment, the old speaker simply stayed on until a new government was formed and chose a new speaker.

The change seems both trivial and sensible. . . . Yet [it] ended up producing the worst constitutional crisis in Israel’s history. [The ensuing] dispute led to the High Court of Justice riding roughshod over the separation of powers by not only creating a new constitutional arrangement in which two speakers would serve simultaneously, . . . but even dictating the second speaker’s identity.

The amendments the new unity government is making to the Basic Laws—meant to create complete parity between Netanyahu and Gantz, as well as to ensure that the prime ministry rotates between them in another eighteen months—are much more far-reaching. . . . And while some will expire automatically when this Knesset’s term ends, others won’t, planting potential constitutional time bombs for future governments.

Read more at Evelyn Gordon

More about: Israel's Basic Law, Israeli Election 2020, Israeli politics, Israeli Supreme Court

Hamas’s Hostage Diplomacy

Ron Ben-Yishai explains Hamas’s current calculations:

Strategically speaking, Hamas is hoping to add more and more days to the pause currently in effect, setting a new reality in stone, one which will convince the United States to get Israel to end the war. At the same time, they still have most of the hostages hidden in every underground crevice they could find, and hope to exchange those with as many Hamas and Islamic Jihad prisoners currently in Israeli prisons, planning on “revitalizing” their terrorist inclinations to even the odds against the seemingly unstoppable Israeli war machine.

Chances are that if pressured to do so by Qatar and Egypt, they will release men over 60 with the same “three-for-one” deal they’ve had in place so far, but when Israeli soldiers are all they have left to exchange, they are unlikely to extend the arrangement, instead insisting that for every IDF soldier released, thousands of their people would be set free.

In one of his last speeches prior to October 7, the Gaza-based Hamas chief Yahya Sinwar said, “remember the number one, one, one, one.” While he did not elaborate, it is believed he meant he wants 1,111 Hamas terrorists held in Israel released for every Israeli soldier, and those words came out of his mouth before he could even believe he would be able to abduct Israelis in the hundreds. This added leverage is likely to get him to aim for the release for all prisoners from Israeli facilities, not just some or even most.

Read more at Ynet

More about: Gaza War 2023, Hamas, Israeli Security