With the exception of issues related to the coronavirus pandemic, this Knesset has passed almost no legislation, and this government has met only rarely.
The rotation government established in May 2020 suffers from a fundamental flaw stemming from the fact that the two blocs, which make it up, have been unable to set in motion the basic decision-making mechanisms of government in Israel, resulting in an extended standstill in government decision-making. The government has refrained from taking administrative actions in areas in which it has the authority (and sometimes the duty) to do so.
Ever since it was formed, and especially in recent months, two of Israel’s main democratic institutions—the Knesset and the government — have barely exerted their respective powers of legislation and of convening to take statutory and other decisions. With the exception of issues related to the coronavirus pandemic, the Knesset has passed almost no legislation, and the government has met only rarely. The importance of dealing with the pandemic and the ensuing economic crisis is clear; there is no doubt that this is an issue that should be given the highest priority and be the focus of attention. At the same time, refraining almost completely from addressing any other issues in terms of legislation or cabinet meeting discussions represents a serious administrative failing—one that is far from reasonable and that certainly contravenes the government’s administrative duty to complete its actions “within a reasonable time.” It should be noted that these two issues are inter-related: The Knesset is failing to pass laws because the Ministerial Committee for Legislation hardly ever convenes, automatically creating a parliamentary majority opposed to any bill. Consequently, the paralysis of the government is also a paralysis of the Knesset.
It is also worth noting that before the formation of the government in May, there was an extremely long and historically unprecedented period (of around 18 months) during which Israel was governed by a transition government. Naturally, during this period, many issues dependent on government decisions were delayed, and almost no legislation was passed, both during and between election campaigns. Senior civil service appointments were not advanced or approved by the government, leaving many senior positions filled by interim staff for an extended period (again, an unprecedented situation), including sensitive roles in major state systems. The damage now being done comes on top of the damage accumulated over this period, and against the backdrop of the great number of neglected tasks that have piled up during transitional government rule. This renders the current failure of the present government (and the Knesset) to perform their functions is even more serious.
Since the government was established in May, around 70 bills have been approved in second and third readings in the Knesset. This is not an unusual number. However, the overwhelming majority of these bills relate to the passing of emergency regulations empowering the government to handle the coronavirus pandemic, and to specific budgetary issues also related to the pandemic (grants, benefit payments, and so on). In effect, it is difficult to find a single substantial piece of legislation that does not deal with the virus or its economic consequences or with amendments to Basic Laws that were necessary to allow the government to function, such as the “Norwegian Law” and other amendments.One exception, in which an amendment was passed unrelated to the pandemic or to the government itself, was the Amendment to the Rabies Ordinance (number 6), 2020, which was passed in mid-November.
We should also note that some of the bills relating to the coronavirus, such as those concerning emergency regulations and subsequently the coronavirus “Special Powers Law,” do not entail regulation as such, but rather confer powers on the government to set norms, and allow the Knesset to review and critique the norms set by the government, ex post facto. This model of action, in which the Knesset is unable to introduce legislation even as bills are passed giving the government power to make decisions, is only part of a broader picture and a pre-existing trend to weaken the Knesset and strengthen the government (and in the current case, this is amplified by the unusually large size of the government).
In this document, we are not seeking to analyze the patterns of legislation regarding the coronavirus, but rather to draw public attention to the sad fact that in effect, the Knesset has relinquished its power to pass legislation on any other issues, including the critical matter of the Budget Law, which the Knesset failed to pass (and even amended the Basic Law: The Government, in an attempt to prevent the dissolution of the Knesset which automatically resulted if the budget not being passed).It should be noted that the consequences of not passing a budget are liable to be extremely serious. An expert opinion published recently in the Ministry of Finance will not allow a budgetary framework that will enable the government to operate from the beginning of 2021. Amiram Barkat, “Chaos on the way? Without substantial legislative changes, government activities will be suspended within a month,” Globes, November 30, 2020.
Since it seems that the pandemic is destined to be with us for a while, it is important to emphasize the need to conduct other parliamentary and government business, so as to maintain and fulfill the function of legislation in other areas requiring action from the government or the Knesset. Legislation is a dynamic business that requires frequent amendments, changes, and innovations. Some legislative changes on economic, social, criminal, and civil issues are needed on an ongoing basis, Thus for example, a number of major constitutional reforms have been on hold for years, having made no progress since the dissolution of the 20th Knesset and throughout the various transition governments (including reforms to the Protection of Privacy Law, legislation on the fiber optic communications network, completing the reform of the criminal code relating to homicide, social laws relating to rights of people with disabilities and the elderly, and many more), and are now in limbo for no good reason. Furthermore, a great deal of work conducted by professionals is going down the drain. There are various legislative memoranda and government bills concerning regulation or economic and financial issues that are time-sensitive, and which are being rendered irrelevant by the delay.For example, the reform to treatment of wounded IDF veterans.
During the 20th Knesset, for example, 14 government bills were introduced to the Knesset and whose passage into law was not completed. Since the government was formed, the Ministerial Committee for Legislation has met very infrequently, and when it has convened, its agenda has mostly included just a handful of bills, almost all of them concerning the pandemic. In normal times, the Committee would meet regularly (except during recess), and would discuss tens of bills at each meeting.Similarly, some 230 legislative memoranda that were distributed during the 20th Knesset were not developed into formal bills, and it is clear that at least some of them were expected to be introduced as legislation in the first “functioning” Knesset that would follow. The current Knesset is failing in meeting those expectations.
To be clear: We are not arguing that from a legal standpoint, the Knesset is required to pass legislation on these matters, or that a judicial warrant could be issued ordering it to do so. But from a public perspective, this is a very severe failure, and one that carries a heavy price for the Israeli public and Israeli democracy.
On the Government
In addition, the government is not operating normally, whether due to the coronavirus or to the lack of ability to function that is inherent in its structure. As the Attorney General recently wrote, with regard to the delays in making senior civil service appointments (November 3, 2020), there are situations in which the government’s power to act can also be a requirement. But even beyond the considerable legal difficulties involved in the government’s failure to act on these appointments, the gravity of the situation is even greater: in effect, the government is simply not functioning. Here, too, the government is holding hardly any discussions on issues not relating to the pandemic.
To understand how serious the situation is, perhaps we should begin with the government’s operational mechanism: Since it was sworn in, the government has yet to pass governmental regulations, as it is required to do by the amendment to the Basic Law: The Government (Rotation Government, 13a (d) (1)): “Should there not be an equal number of ministers as stated, the government shall institute a voting mechanism whereby the voting power of the ministers in the government aligned with the Prime Minister will be equal to the voting power of the ministers aligned with the Alternate Prime Minister, or [shall set] rules for the decision-making process that will ensure said equality.”
Over time, it is impossible to justify the continued existence of a government that, in practice, fails to perform its basic functions. The government’s failure to convene the Ministerial Committee for Legislation is essentially preventing any legislation being advanced in the Knesset. Because the default position in the coalition agreement (as in all coalition agreements in recent years) is that the coalition will oppose any bill not passed by the Ministerial Committee for Legislation, and because this committee is not being convened the coalition automatically opposes any legislation proposed in the Knesset.The most prominent of these bills is the Defense Service Law (Integrating Yeshiva Students), known as the “Conscription Law,” but there are also others, such as the bill seeking to regulate paramedical professions (such as occupational therapy, physiotherapy, and so on), the bill to expand the Legal Aid Law, the major reform of benefits provided to wounded IDF veterans, and many more.
To some degree, this can also be viewed as severe interference with the separation of powers and a significant infringement by the government of the Knesset’s legislative power. While a majority in the Knesset is willing to accept this sorry state of affairs, there are serious implications for governance inherent in a situation in which the government sweepingly opposes, without any relevant justification, any legislation unrelated to the coronavirus pandemic.
It is worth noting that this issue was also brought before the Supreme Court when it approved the political agreement that was the basis for the formation of the government. While the original coalition agreement stated that the government would not support any legislation not related to the coronavirus pandemic, the Court, in the course of its deliberations on a petition against this agreement, asked the relevant parties to confirm that this would not be interpreted as preventing other legislation from being passed, but rather would only prioritize coronavirus legislation. Justice Yitzhak Amit explicitly referred to this in his ruling (High Court of Justice 2592/20):
A government that has not yet been formed is not supposed to freeze the functioning of the Knesset, the legislative branch of state: “The government owes its vitality to the Knesset, not vice versa. All the more so, a government that has not yet been established cannot control the Knesset and order it to ‘power down’ …” (HCJ 2144/20 Movement for Quality Government in Israel v. Speaker of the Knesset (March 23, 2020)). Therefore, it is good that the parties have clarified their intentions in the agreement.
We would argue that the government is not adhering to the terms of the “clarifications” it provided in this Supreme Court hearing. In practice, it is preventing almost any non-coronavirus legislation from being passed, thus “paralyzing” the Knesset’s activity with regard to its legislative powers. This is not merely “prioritizing” coronavirus legislation, but rather--almost entirely blocking any other legislation from being passed.
It should also be remembered that when the coalition agreement was signed, almost no one thought that the pandemic crisis would last so long, and so, even if at the time--there was some logic to heavily prioritizing coronavirus legislation, this situation cannot continue for months and into a second year. This is an infringement of the separation of powers, in that the government is preventing the Knesset from exercising its most important power—not with regard to a specific issue, nor for specific reasons (in such matters, imposing coalitionary discipline is considered a reasonable act in parliamentary regimes), but rather-in a sweeping, across-the board manner. The longer such a situation continues, the more it undermines the government’s public legitimacy and extends beyond the boundaries of the principle of reasonableness.
Transparency and Oversight
In addition, in the absence of government cabinet meetings, the ability of the Knesset and the public to oversee the government’s functioning is dealt a severe blow. Government decisions (unlike the protocols of government discussions) are largely public, as is the Ministerial Committee for Legislation; the media, the public, and the Knesset are aware of them and can respond to them. Even though government discussions are not open to the public and their minutes are not published, whenever such discussions are held, the considerations and rationales underlying the decisions emerge, and as soon as a government decision is published, it can be reviewed and responded to. The Knesset can ask questions, hold hearings, and place issues on the parliamentary agenda following decisions made by the government. By contrast, when policy decisions are taken by government ministries without any broader discussion, it is almost impossible to exercise oversight, as no information is available about internal disagreements or about the facts that informed the decision-making.
With regard to the budgetary “compartments,” in contrast to the usual state budget, the current situation is not subject to regular oversight by the Knesset Finance Committee. Many of the funds allocated via the “budget compartments” laws have not reached their destination, and there is no real way to oversee with transparency the disbursement of funds to their recipients. Thus for example, according to an update published by the Ministry of Finance in October, the government had expended only around 57% of the funds allocated for coronavirus relief for 2020.Amiram Barkat, “The government promised money for professional training, food vouchers, and employment grants. In practice, not a single shekel has been transferred.” Globes, October 14, 2020.
The rotation government could have created a mechanism for consensualism or power sharing such as exists in other democracies (for example, in today’s Northern Ireland). At its best, a mechanism of this kind can help moderate social rifts, , encourage opposing sides to compromise (and on the other hand, allow them to maintain the principles they hold dearest), and overall, permit a reasonable existence for all despite the deep differences. But in the case of Israel, it has created paralysis.
The paralysis of the government, which has resulted in paralysis of the Knesset, is inflicting serious harm to the public interest in Israel. This is being expressed in the state’s inability to grapple with the public health crisis and the economic and constitutional crises it is facing. A government that cannot fulfill its duties deals a blow to the public, for both the short and long term. This situation cannot go on, and must be resolved as soon as possible. When the government fails to function over an extended period of time, this can be considered as dereliction of its duty to operate in accordance with the principles of reasonableness and within a reasonable time, as anchored in administrative law.