The Real Constitutional Problems with Israel’s New Government

May 6, 2020 | Evelyn Gordon
About the author: Evelyn Gordon is a commentator and former legal-affairs reporter who immigrated to Israel in 1987. In addition to Mosaic, she has published in the Jerusalem Post, Azure, Commentary, and elsewhere. She blogs at Evelyn Gordon.

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The best-known example is the ill-fated experiment with directly electing the prime minister in the 1990s, which was repealed a decade later.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.

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