The Increase in the Ministers’ Number: Political Prestige at the Expense of Law

The sworn-in of the new Israeli government is escorted this time with a saga. For almost an entire week, the government’s will to augment the number of ministers caused a peculiar stage-show in the Knesset and the involvement also of representatives of the legal world, such as the Knesset Legal Advisor and the Supreme Court itself. Yet, unlike other sagas, this one did not cause any particular unexpected dramas. The Basic Law was amended, the government sworn in, the Supreme Court did not intervene. Nevertheless, the legal system has undergone a considerable harm to its prestige. The question is who is responsible for this.

Most of the public will easily point the finger to Netanyahu, the master of twisting and turns. Netanyahu was the head of the government who authorized the limitations in the ministers’ numbers, Netanyahu currently initiated the limitation’s abolishment. Yet, this time it is not Netanyahu the one to be blamed.

Neither is Lapid. Yesh Atid, the party which introduced the numerical limitation, pursued a consistent line by filing the unsuccessful petition to the Supreme Court. Rather this time, the blame should be put on the system itself. Ideally, governments should comprise only a few ministers and political systems should be able to accommodate such arrangements. And they do, in a number of countries, including the Scandinavian ones or Australia and New Zealand which do not though share with Israel the same turbulent, dynamic political and social landscape.

What’s more, in presidential systems, like in the U.S., the President can more easily restrict his ministers to a certain number, because he appoints them. Yet, parliamentarian systems, like the Israeli one, based on political parties, have to engage with the balances between different coalition parties or even with the balances in a party itself. Not surprisingly, Netanyahu postponed the allocation of the ministerial posts to the Likud MKs in order to avert a possible rebellion in the Knesset voting on the ministers’ number issue. In parliamentarian democracies, the formation of a government is not only a form of governance, but also a highly political act.

These points against the constitutional entrenchment of the ministers’ number were raised also back in 2007 in the realms of the relevant Knesset debate on the formation of a constitution. The fact that were not ultimately heeded turns out to cause major harm to the Israeli constitution project, as President Rivlin recently noted, as well as more generally to the rule of law.

Thus, instead of declaring the government initiative null and void due to the lack of the 70 MKs needed to agree to such increase in the number of ministers, the Knesset Legal Advisor opted to disregard this special majority requirement and focus on other procedural issues such as the fact that the amendment should be discussed by a special Knesset committee. Wrongly though. Even in absence of a new government, a new Knesset is in place. There is no reason thus to resort to such exceptional ‘special committee’ solutions which are not met in other constitutional orders.

Similarly, the Supreme Court, not entering in any discussion on the 70 MKs special majority, appeared simply to declare its satisfaction with the government position on the issue.

It could not have been otherwise. The non-formation of a Netanyahu government would mean the government formation mandate would be given to Herzog and Livni and given the latest election results that could cause more instability.

Yet, echoing the President’s remarks, policy as law is not good news for the Israeli legal system, especially at a time when recent political developments make it feel as volatile as ever. The ministers’ number affair has just added another scar.