Israel’s New Elections Are the Latest Symptom of an Assault on Its Institutions

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The country just held a general election in early April—but under the law, Israelis will now go to the polls again less than six months later, on Sept. 17 - what happened and why?

Knesset | Flash 90

On the night of May 29, the Israeli Knesset voted to approve a law dissolving the 21st Knesset. The country just held a general election in early April—but under the law, Israelis will now go to the polls again less than six months later, on Sept. 17.

The conventional wisdom after the last election was that Benjamin Netanyahu, leader of the Likud party and incumbent prime minister, would easily form a coalition. Right-wing parties secured a comfortable 65-seat majority in the 120-member Knesset. But Netanyahu failed to form a coalition, and the Knesset chose to pass a dissolution law and call yet another vote instead of the alternative parliamentary mechanism.

What Caused the Call for New Elections?

This post aims to explain three interconnected issues that, together, might illuminate how the government arrived at this unusual and unexpected result. First, it explains the formal process for forming a government in Israel. Second, it describes the concrete political dispute that was presented as the issue that prevented Likud and the right-wing parties from forming the coalition. Last, it briefly discusses the constitutional crisis in which Israel has been engulfed in recent months and that looms in the background of this entire process. This last issue will be discussed in more detail in subsequent posts in the coming weeks.

The Formal Process of Forming a Government in Israel

Israel is a Westminster-style parliamentary democracy, meaning the government, Israel’s executive branch, has to win the confidence of the majority of members of the Knesset in order to be approved. The process of forming a government is detailed in Basic Law: The Government. After the results of the election are declared, the president, after consulting with representatives of all parties elected to the Knesset, assigns the task of forming the government to a member of the Knesset, who has 28 days, which the president may extend by a further 14 days, to form a government. If that member fails to do so, the president may then assign the task to a different member, or inform the chairperson of the Knesset that he sees no possibility of forming a government. In that case, and unless a majority of members of the Knesset declare their support for a specific candidate, general elections must be held within 90 days. According to the same law, the Knesset may at any time during the process pass a dissolution law, calling new elections and ending the process of forming a government.

On April 18, President Reuven Rivlin assigned Prime Minister Netanyahu the task of forming the government. On May 13 Rivlin extended the period for a further 14 days. During that period, Netanyahu was able to garner the support of only 60 members of the Knesset—not enough to form a government. Netanyahu was unable to reach an agreement with the Yisrael Beytenu party (whose name translates literally to “Israel is our home”), which has five members in the Knesset and is headed by Avigdor Liberman, the former defense minister. The period for forming a government expired at midnight on May 29. In order to avoid the possibility that Rivlin would assign the task of forming the government to Benny Gantz, head of the Blue and White party, the major opposition bloc, members of the prospective coalition—including Liberman's party—voted for a dissolution of the Knesset law, with elections expected to take place on Sept. 17.

The Dispute Over the “Conscription Law”

The “conscription law,” which would compel at least some ultra-Orthodox Israelis to military service, like other Israelis, was presented as the impasse that halted the formation of a coalition. It was supported by Liberman’s party and opposed by the Ultra-Orthodox parties, and no compromise could be reached. Granted, some believe this dispute merely served as a pretext for Liberman not to join Netanyahu’s government. Without offering an opinion on the sincerity of Liberman’s objection, the following is an explanation of the conscription law and the associated controversy.

Israel is one of a handful of democracies that still have a draft—compulsory universal service in the army. Military service in the Israel Defense Forces falls under three different tracks.

The first track is “regular compulsory service,” mandatory military service for Israeli men and women who reach the age of 18. Since 2015, the length of service for men stands at 32 months, and for women, 24 months. The length of service for men enlisting after July 2020 is due to be shortened to 30 months.

The second track is “career service.” Many soldiers extend their compulsory service and enter a contractual agreement with the IDF to become professional career soldiers. Certain military jobs—especially those that require extended training, like fighter pilots, special forces and cyber units—require draftees to agree in advance to a longer term of service.

The third track is reserve duty. After military personnel complete their regular service, they are either granted a permanent discharge from military service or assigned to the reserve forces. The time commitment of a reservist ranges from several days to several weeks a year. In case of an armed conflict, reserve duty soldiers are called up in large numbers to beef up Israel’s small regular army.

The IDF does not release official data on its total strength. It is estimated that there are 175,000 soldiers on active duty (i.e., compulsory and career service) and 450,000 soldiers in the reserves. In addition, some of those exempt from military service volunteer to serve in the civilian National Service, which entails one or two years of work in education, health services, nonprofit organizations, public services and the like.

Of the approximately 120,000 Israelis who reach age 18 every year, only about 50 percent enlist in the army. Arab Israelis, who make up approximately one-quarter of the cohort, are not called up for military service at all. Amongst the Jewish population, 10 percent are typically exempt for medical reasons or because of criminal records. By law, women may be exempted if they sign a declaration citing religious reasons (approximately 34 percent of Jewish women do so, probably one-third of them dishonestly). Finally, of the more than 10,000 ultra-Orthodox men eligible for military service in 2017, only about 30 percent enlisted. Almost all of those who did not enlist received a deferral of service, which after several years will become an exemption, on the grounds that they were devoting themselves to full-time religious studies in yeshivot. It is this exemption that formed the basis of the current debate.

David Ben Gurion agreed to a service exemption for ultra-Orthodox men studying in yeshivot in the early days of the state of Israel. The total number of men receiving this exemption at the time was only 400, and it was presented to Ben Gurion as a means for saving Jewish yeshivot after the Holocaust. The ultra-Orthodox community, which was then very small, presented the religious importance of continuous religious studies and the exemption from service as essential for the survival of their community.

Nowadays, the situation is completely different. In an unprecedented development in Jewish history, almost all ultra-Orthodox men spend years in yeshivot, partially funded by the government, after they reach the age of 18. As a result, they not only are exempted from military service but also are absent from the employment market. In fact, the two issues are interconnected, since a young ultra-Orthodox man who leaves yeshiva before receiving a “final exemption,” usually around the age of 24, must first serve in the IDF before joining the workforce. Naturally, this creates a strong motivation for remaining in the yeshiva even for those who might otherwise have preferred to join the workforce. And because the ultra-Orthodox community is one of the largest growing communities in Israel, with a birth rate of almost seven children per woman, this situation creates serious problems for both the IDF and Israeli society. Currently, there are almost 40,000 young ultra-Orthodox men whose service was deferred, and many more who stay in the yeshivot even after being exempted from service simply because they have no other skills relevant to the job market (students in the yeshivot receive a modest stipend, partially funded by the state).

The exemption for the ultra-Orthodox became a hotly debated political issue in the 1980s. With the growth of the ultra-Orthodox community came the claims that the exemption, especially as the number of young men exempted grew, constituted an unjustified violation of the principle of equality under Israeli law. To the Israeli secular majority, it became unacceptable that an entire community did not serve in the army and did not share the burden of providing national security and the associated death toll. (A segment of the secular majority constitutes Avigdor Liberman’s core supporters.) Many also questioned why the state should fund people who wish to learn religious studies. It also became apparent that, at some point, Israel will be unable to sustain a situation in which a significant segment of the workforce simply chooses not to work.

Israel’s Supreme Court began to intervene in this issue as early as 1998. In Rubinstein v. Minister of Defense, the court endorsed the Israeli version of the nondelegation doctrine: The minister of defense cannot exempt the ultra-Orthodox soldiers as a group through his general authority to provide individual exemptions. To continue to defer and exempt the ultra-Orthodox, the law must include an express authorization.

This turned the issue into an almost unsolvable political tangle. The right wing has been in power during most of the period since the end of the 1990s, and the ultra-Orthodox parties are essential for any coalition on that end of the political spectrum. Gaining the participation of the ultra-Orthodox parties, which are deeply opposed to any significant change in conscription, proved almost impossible. Twice, the Knesset passed laws that proclaimed an aim of increasing the numbers of young ultra-Orthodox men in the IDF, but doing so gradually. And twice, the court struck down these laws as violations of the principle of equality. In the most recent of these cases, Movement for Quality in Government v. The Knesset (2017), the court explained that even if the law could adopt the theory of a “gradual increase in numbers,” it could do so only if there would be clear annual quotas reflecting this increase and serious sanctions if the quotas would not be achieved. The court then declared that absent any legislation, the exemption for religious studies would become void by February 2019, and absent any legislation, all ultra-Orthodox men of the relevant age would be required to serve by then.

The Knesset was then tasked with trying to provide a solution once again. The task fell to Liberman, who then served as the defense minister under Benjamin Netanyahu. Liberman's party represents the interests of the large Russian-Jewish community in Israel, a community that consists mostly of the large influx of Jews who came to Israel from the former Soviet Union during the 1990s. This community is almost entirely secular, and there are several tensions on religious grounds between them and the ultra-Orthodox parties. To avoid an internal clash within the government, Liberman appointed a professional committee, formed mostly of career bureaucrats in the Ministry of Defense and military officers to propose an amendment to the law. After consulting with representatives of all segments of Israeli society, the committee offered a suggestion that it thought would be acceptable to the court, and to the leaders of the ultra-Orthodox community. The recommendation was detailed, but two important points, relating to the specific demands set by the Israeli Supreme Court, stand out. First, it set clear annual quotas for an increase in ultra-Orthodox service, bringing the total number of those serving to about 50 percent of the eligible male population within a decade. Second, it suggested “economic sanctions”—ceasing the funding of ultra-Orthodox yeshivot if the quotas were not met.

Liebrman was willing to adopt this proposal as a compromise, and a solution to the political impasse, but only if it would be passed as is by the Knesset. Some of the ultra-Orthodox parties were opposed, especially to the idea of the quotas. Unable to reach an agreement, the former Knesset declared an early election. As elections automatically postpone the expiry of all laws until three months after the vote, the annulment of the law was delayed until July.

Liebrman stuck to his position during the talks on forming the coalition and demanded that the coalition commit to passing the conscription law as a condition for supporting the government. The ultra-Orthodox parties were willing to compromise, agreeing to quotas set by the government (and not the law). Liberman did not budge, stating the quotas set by the government could be easily amended and hence do not amount to much. Unable to bridge the gap between his opposing potential coalition partners, Netanyahu faced a choice between another election and leaving the matter up to the president.

Important as the issue of conscription is, this all does not make a lot of political sense. Liberman declared he would support Netanyahu as prime minister, and it is unclear whether elections would change anything in the political formation of the right-wing coalition, which is set to win the elections again. Even if Liberman can gain some votes from these elections, having positioned himself as the champion of the right-wing secular community, he is certainly taking a chance. It is also hard to believe that the ultra-Orthodox would get a better deal from any other future coalition.

Perhaps something completely different is going on here. In the background of the conscription debate is a much more important issue. What really bothers Netanyahu, and the entire Israeli political system, is the ticking legal-criminal clock. Israel’s attorney general has decided to indict Netanyahu on charges of receiving bribes and breach of trust, subject to a preliminary hearing with Netanyahu's lawyers that is set for early October. According to extensive media reporting, the coalition negotiations focused on changes in the Israeli Immunity Law, and the insertion of an override clause in the Israeli Basic Laws, both of which are aimed at halting the legal proceedings against Netanyahu. I will devote separate posts to these issues in the coming weeks. One should be extremely careful making accusations about this, but some observers suggest that this is the real reason for Netanyahu’s failure. Netanyahu’s insistence on a coalition that would support his immunity meant that his political options were extremely limited. Effectively, there was only one possible coalition that would do so. That left Netanyahu vulnerable to demands by all potential coalition parties that he couldn’t afford to refuse. The prospective coalition parties were quick to realize this and increased their requests. Perhaps even Liberman realized the dynamic and decided this would be a good place to draw a red line. Perhaps he realized that ultra-Orthodox parties were pushing their demands in other areas of religion-state relations and felt a need to protect his secular base.

On a more optimistic note, perhaps, just perhaps, the extensive popular opposition to Netanyahu’s proposed changes to the Immunity Law reached a level at which Liberman decided it would be wise not to ignore them.

There is no Israeli precedent for a failure to form a government immediately after an election, and for a dissolution of the Knesset so close after the previous elections. Looking at precedents from other states, such an occurrence is sometimes connected to a constitutional crisis. It seems to me that this result does indeed reflect the fact that Israel is undergoing a constitutional crisis: The criminal investigations, and possible indictments, of the strongest prime minister in Israel since Ben Gurion unleashed forces that now aim to undermine some of the fundamental institutional arrangements of Israeli democracy. The authority of courts, the independence of criminal prosecution and the Israeli electoral system are all under assault. Whether the forces attacking them will succeed in altering the face of Israel’s democracy remains to be seen.

The article appeared in Lawfare.