Yuval Yoaz
Yuval Yoaz
Zman Israel's legal analyst
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Yes to term limits — an emphatic no to the demand that Netanyahu ‘cool off’

New Hope's proposal that would deny the PM the right to stand for office for the next four years is a step too far, a step away from fundamental democratic rights
The Plenary Hall during the swearing-in ceremony of the 24th Knesset in Jerusalem, April 6, 2021. (Alex Kolomoisky/POOL)
The Plenary Hall during the swearing-in ceremony of the 24th Knesset in Jerusalem, April 6, 2021. (Alex Kolomoisky/POOL)

The proposal now being considered by the new coalition to limit an Israeli prime minister’s time in office to no more than eight years is a good and worthwhile idea.

The proposal suggested last week by the New Hope party to also deny someone the right to run for the Knesset if they have committed the great sin of serving for eight years as prime minister – is not.

The “cooling off” bill placed on the Knesset’s docket by New Hope on June 1 is a dangerous, unhinged idea that must be opposed.

Warping the rules of the game

There are many reasons why it’s a good idea to limit the time in office of a prime minister. For one thing, it makes it easier to change administrations.

A functioning, thriving democracy is one in which power passes from time to time from one side of the political map to the other, opposition becoming coalition and vice versa. Those who were in the epicenters of power, with access to key posts and budgets, are forced to disconnect from them, while those who could only comment from the sidelines get a chance at the rudder.

In an ideal world, one would avoid legislation that tries to tinker with the voters’ choice, and it is the public alone that would be empowered to bring about a change in government through the ballot box. But there’s an argument to be made that an overlong term in office by a single person could result in so extreme a consolidation of power in his or her hands that it could threaten the very rules of the game, the rules that ensure that governments periodically change. So it’s important to set down constitutional rules limiting overly lengthy terms in office — and not only for the prime minister; the same logic applies to MKs and mayors.

The Israel Democracy Institute has listed in a recent policy paper (https://www.idi.org.il/articles/34207) the justifications for term limits for prime ministers. Besides the overconcentration of power in one person’s hands, there are also the concerns that a long-serving prime minister will work to weaken and delegitimize his rivals; that longer terms make corruption more tempting; that an opposition that cannot win at the ballot box cannot meaningfully hold the government to task; and so on. There are downsides to term limits, but they arguably pale next to the benefits.

Proposals to institute term limits (https://www.nevo.co.il/law_html/law04/5831_20_lst_519555.htm) have been circulating in the political system for three decades at least, beginning in the years before Benjamin Netanyahu came onto the national stage.

Abridging a fundamental right

Yet none of that has anything to do with the bill put forward by New Hope. The new proposal doesn’t just seek to limit the prime minister’s term in office, but adds the stipulation that anyone who served the allowed period of eight years will subsequently be prevented from being elected to the Knesset for the four years that follow.

That stipulation makes the proposal anti-democratic and unconstitutional, first and foremost because of its direct abridgment of the fundamental right to elect and to be elected.

That doesn’t mean that two critiques leveled at the proposal this week – that it will apply retroactively and that it targets a specific individual – are especially convincing.

Constitutional changes are usually triggered by the need to respond to changes in political realities, so it’s not strange that a proposal for term limits or “cooling off” periods comes in the wake of the longest premiership in Israel’s history. The American constitution, too, did not state from the beginning that a president can only serve two terms – not until the 22nd Amendment passed after Franklin Delano Roosevelt’s unprecedented fourth term.

The complaint about it being retroactive is even stranger. The cool-off part of the legislation doesn’t apply retroactively to the prime minister’s past election to the Knesset, it merely takes into account his past terms as prime minister when weighing his run in future elections. That’s not retroactive.

Still, to silence such criticism, one could simply stipulate that the bill will only go into effect two Knessets from now – that is, in the 26th Knesset – thereby silencing any criticism that it targets a single individual or applies retroactively.

Key roles in a political system

But that wouldn’t solve the basic problem with the proposal, which doesn’t lie in who it targets or whether it applies retroactively, but in its serious limiting of the fundamental right to elect and be elected. This right, anchored in articles 5 and 6 of the Basic Law: The Knesset, is a cornerstone of democratic life. As Chief Justice Esther Hayut has written, these are “the first order of constitutional rights.”

Of course, these rights, like all human rights, are not absolute. They are subject to certain limitations. The Basic Laws do place some limits on who can run for Knesset.

But the idea that someone would be forbidden from serving as one of Israel’s 120 MKs, a public service granted them by the will of the voting public, not because of their misbehavior but merely for the fact that they served a certain number of years as prime minister – is a blow to the foundations of the democratic game.

Israel’s political system is a parliamentary democracy. The playing field is the Knesset. Parties who run for Knesset may join coalitions to serve in executive positions in government or remain in the opposition. Sometimes the makeup of coalitions changes in the middle of a Knesset’s term. It is no less noble or important to serve in parliament than in government. The Knesset is the more senior of the branches of government, the body that oversees the government, and the body whose vote of confidence grants the government the right to rule.

All of that tells us that parliamentary roles, and especially the role of opposition leader, are key to the functioning of our democracy. When administrations change, the ruling party become an opposition party and ideally takes on its new oppositional role with all vim, vigor and devotion.

What justifies excluding a former prime minister from that political game? What justification is there for denying him the right to fulfill that vital oppositional role in our democracy?

The explanatory section of the new bill lays out the rationale for term limits for a long-serving prime minister — even referring to an overly long term in office with the problematic phrase “democratic market failure” — but it doesn’t explain why the correct solution to the problem includes preventing a former prime minister from then serving in the Knesset. It only notes, vaguely and in passing, that “the cooling-off arrangement from the Knesset is the only effective arrangement that can fulfill the purpose of this law, which is to prevent corruption and the overconcentration of power via proportional and acceptable means.”

That’s an untrue statement. The cooling off proposal isn’t the only possible way of doing that. For one thing, it’s wholly irrelevant to the problem of the overconcentration of power the moment a prime minister concludes his eight years and becomes a former premier. Do the bill’s authors really fear that he will be able to continue pulling the strings of government from a parliamentary seat?

It’s hard to understand the practical governance rationale for the bill. It seems to be an attempt to make it in Netanyahu’s personal interest to allow the Bennett-Lapid government to last its entire four-year term, since any Likud return to power before the four-year cooling-off period ends would see a different Likud leader as premier.

But one isn’t supposed to legislate changes to the basic rules of the regime just to serve the momentary political needs of the current government. Constitutional frameworks are supposed to last generations.

Yamina’s public opposition to New Hope’s cooling-off bill seems to have taken it off the agenda for now. The new “change coalition” would be wise to now focus its energies on simpler and more purposeful legislation, of the sort that might introduce clear and appropriate term limits of, for example, eight years or two terms, whichever is longer.

About the Author
Yuval Yoaz is the legal analyst at Zman Israel, The Times of Israel's sister Hebrew website. He practices law, specializing in public, constitutional and media laws. He is a partner in the law office of Karniel & Co Yoaz-Bareket-Jonas.
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