Bibi’s Time-Out

It is finally signed — a “Coalition Agreement for the Formation of a National Emergency and Unity Government”. The country breathes a collectively sigh of relief — no fourth round of elections and finally an elected government with a stable parliamentary majority that can govern by consensus and lead Israel through the twin afflictions of the Corona Virus and economic stagnation. A government of up to 52 ministers and deputy ministers may be a trifle “top heavy” for tiny Israel facing giant-sized problems — but hey, it is still a government.

To his former colleagues that used to be part of his Blue and White party, Benny Gantz proudly presents a document that sets a time limit on Benjamin Netanyahu’s term as Prime Minister: in just eighteen months from the formation of the new government, Bibi’s time is up and Gantz will take over as Israel’s 13th prime minister. Yes, I compromised. I will join a government headed by a man indicted on criminal charges with moral turpitude, but I have saved the Country from further divisive elections and if not before, in just eighteen months’ time, I take over and can start making changes, putting Israel before all else. Bibi will time-out. Peace in our time.

But wait a minute. Take a closer look at this “historic” Agreement and the timing of its coming into existence.

Benjamin Netanyahu did not want to enter into this Agreement.

On the 15th of April, the President declined to extend Gantz’s mandate and effectively tossed the initiative to form a government back to the Knesset. The Members of the Knesset have only 21 days from April 15, to inform the President that over sixty-one MK’s request that the mandate be given to a particular MK. If no candidate is backed by the required number of MKs, then the Knesset is automatically dissolved, and new elections are set.

Bibi was quite happy to spend the entire 21-day period discussing the details of the coalition agreement. Each time that Gantz thought that all the details had been worked out, he woke up to find that Bibi wanted to take another look at this, or that matter, or to reopen a point, or two, for some further discussions.

Four days into this final 21-day period and after several weeks of ongoing discussions regarding the coalition agreement that was always “almost complete”, Gantz finally realized he was being played. He broke off the negotiations and informed the Likud that he was going back to the Knesset to try and pass anti-corruption laws that would clarify the legal situation and make it impossible in the future for the President to give a mandate to form a government to a man indicted on felony criminal charges. Maybe new elections, but ones that Netanyahu cannot win.

Wait, wait cried his Likud partners. Netanyahu did not want to face new elections as the man that sabotaged talks for a “Unity Government”. Even less, as a man that might not be able to get a mandate to form a government without first rescinding some newly passed anti-corruption laws.

And so, it came to pass that on April 20, 2020 the great “Coalition Agreement for the Formation of a National Emergency and Unity Government” (dated April 16) was signed by the Likud and the Blue and White Knesset Factions.

And what a strange Agreement!

Forty-one paragraphs, of which maybe three deal with policy matters. The Coalition Agreement is devoid of any real operative guidelines – what do they set out to achieve? Sure, the Agreement mentions that the Government will deal with the Corona and economic crisis – but no specifics, just slogans. The only two policy issues dealt with in any degree of detail: Annexation of the West Bank and the Army Draft Law (the version approved by the Charedi parties– with flexible non-quotas to be set by the Government from time to time, not anchored in a law).

So, if political guidelines for action are not the subject of the Coalition Agreement – what does it contain? It is a blue-print for revising Israel’s constitution – upending many foundation principles. The total lack of any trust between the signatories to the Agreement combined with the legal difficulties facing Benjamin Netanyahu have led to a document that sets out to change the Basic Laws of the Government, the Knesset and several other constitutional norms. Instead of an agreement between Parties on how to cooperate within the constitutional framework, an agreement to smash and rebuild the constitution to their own fifty-fifty dream design.

A nation that seeks to be a “light unto the nations” – proudly presents a unique constitutional government framework, not one Prime Minister – but effectively two Prime Ministers: A Prime Minister and an Alternative Prime Minister. Each of these functionaries appoints half of the cabinet ministers (and can only fire and replace those that they appoint). A complex cabinet voting system – that ensures that each faction has half the votes – regardless of the number of actual ministers. Half the government is mine and half is yours.

Instead of an executive government that stays in office as long as it hold the confidence of the legislative branch, the Knesset, – we have a government that has a fixed three year term, with an initial vote of confidence that can only later be undone by some supermajority of seventy-five MKs. A fixed date on which a “rotation” is supposed to occur between the Prime Minister and the Alternative Prime Minister – without the need for any further Knesset approval. So, for the first time – we can have a Prime Minister take office without the confidence of the Knesset. Provisions ensuring that a man indicted on criminal charges has a say in appointing judges, the next Attorney General and senior members of the State Attorneys’ Office. And of course, many provisions to ensure that even if an Alternative Prime Minster, is unfortunately indicted, or even convicted, on criminal charges, this should not upset any of the arrangements, or immediately compel the person out of office.

How does one change so many fundamental constitutional principles in a matter of a few days, without any real public debate and without completing all the details? (A clause in the Agreement clarifies that all the legislative and constitutional changes required for this “Alternating Government” must be legislated into law before the factions actually ask the President to give Netanyahu the mandate to form a government – so all enabling laws have to be passed in the coming few days before the Knesset automatically dissolves for failing to form a government.)

The Knesset legal advisors that opined on the draft legislation to implement these constitutional changes, noted that the legislation is “full of holes” (lacunae) and that many issues will need to be ironed out and resolved in committee discussions. Joint decision making on certain key-issues may be OK in theory, but what if a decision is required and the Prime Minister and the Alternative Prime Minister do not agree? Flip a coin? Role the dice? Are two heads always better than one? Where does responsibility stop?

The whole “two headed” government structure, the many holes (lacunae) in the draft legislation leading in some circumstances to confusion as to when the Alternative Prime Minister and the Prime Minister actually do their “rotation”, the anti-anti-corruption provisions exempting the Alternative Prime Minister from having to resign if indicted on criminal charges (as required by current law), provisions ensuring that a Prime Minister under indictment has effectively a say in key judicial and other law-enforcement appointments, the Army Draft Law provisions in a form that are most likely not acceptable to the Supreme Court that is engaged in an ongoing effort to require the Knesset to deal with this issue in an equitable manner – are all provisions designed by one side of the Agreement to “invite” the intervention of the High Court of Justice.

Already several petitions are before the Court. What could be better for Bibi than to have the Court throw out one, or more, parts of the Coalition Agreement and the laws that seek to enact it into Israel’s constitutional law? He can then happily lead the country to a new round of elections, running against a totally fragmented opposition and the Supreme Court with a great election rallying point: how one needs to reign in the power of the Courts that prevented his much yearned for “Unity Government” (and at the same pursue his one true agenda – immunity from criminal prosecution).

Rest assured, even if the Court ducks the many constitutional issues and does not derail the enabling legislation, it is unlikely to pass. Disagreements over how to fill in the “holes” in the current drafts, covertly orchestrated and directed from Balfour Street, will prevent passage of some of the framework legislation.

The basic truth is: one side of the Coalition Agreement signed it without any real desire to ever implement it. It is simply one huge distraction, keeping Gantz & Co. busy trying to pass impassable laws, instead of having them focus on the quite passable anti-corruption laws supported by Gantz’s former friends and allies. For Netanyahu, the appearance of seeking unity – without the strings attached of having to follow through on it.

As the clock ticks away the remaining seconds of the lifespan of the 23rd Knesset and the 21-day deadline approaches, it is more than likely that two, or more, “patriots” will abandon the sinking Blue and White ship and join Bibi and his 59 supporters – enabling him the to form the narrow right wing-religious immunity government that he seeks, without Gantz and his pretentious “50-50” power sharing demands.

Time might run out for the 23rd Knesset, but not for Bibi.

If all else fails, he can always lead us to new elections…

About the Author
Jonathan Schwartz works as an independent commercial lawyer, with a focus on high-tech and medical devices. Born and raised in Johannesburg, South Africa, he made Aliyah at the age of 19, and moved to Zur Yigal after spending time in Jerusalem, Kibbutz Tzora and Raanana. He is married with 4 children.
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