Are we Headed for Another Historic First?

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Tomorrow, Gantz's mandate to form a government will end, and we are expected to enter an unparalleled stage in Israel - 21 days, during which a majority of Knesset members, at least 61, are allowed to ask the president to assign the mandate to anyone of the 120 MKs.

Avigdor Liberman, Benny Gantz | Flash 90

Barring some unexpected last-minute developments, this Wednesday (November 20) will bring with it another unprecedented scenario in Israeli politics. According to the process of government formation as laid down in the Basic Law: The Government, this will be the last day of the mandate granted to Benny Ganz by President Rivlin to put together a government. If Ganz does not inform the president by the end of the day that he has succeeded in doing so, then—for the first time in history—we will enter a new stage: 21 days during which a parliamentary majority of at least 61 Knesset members (MKs) are entitled to request that the president place the task of forming a government in the hands of an individual MK. It is important to note that this MK could also be either Ganz or Netanyahu, both of whom have already failed in their attempts to do so. 

From this point on, two outcomes are possible:

• If no such request is submitted to the President within 21 days, the Knesset will be dissolved, and a date will be set for new elections.

• If the President does receive such a request, and the MK who is recommended by at least 61 fellow MKs accepts it, then he will be given the task of forming a government (within 48 hours of the request being received), and will have only two weeks in which to do so. If this attempt is also unsuccessful, then new elections will be called.

Based on the law, the “default” option is for new elections to be called. If the Knesset does not take active steps—that is, a declaration from 61 MKs that they support a particular candidate for prime minister, and of course, a vote of confidence in the new government—then the automatic outcome is an election. In this sense, new elections are certainly a reasonable option.

The 21-day period is a mechanism designed to prevent a situation in which the process of forming a government drags on almost indefinitely, as has happened in Belgium, for example. There, the law does not stipulate any deadline for forming a government, resulting in a long and exhausting process on a number of occasions. Following the 2010 elections, it took a year and a half (!) to form a new government. And today, six months since the last elections in Belgium, there has still been no new government sworn in.

Similar mechanisms to that used in Israel can be found in other democracies. In Spain, the king appoints a candidate for prime minister following the elections, who must then gain the confidence of parliament in his government and his appointment as prime minister. In the first round, an absolute parliamentary majority is required; if this is not forthcoming, then a second vote is taken 48 hours later in which a plurality is sufficient (more votes in favor than against). Should the prime ministerial candidate fail to form a government, the king may appoint another candidate, but the constitution limits this process to two months from the date on which the first vote was held. If this time period runs out, or if the king concludes before then that there is no chance of a government being formed, he dissolves parliament and calls new elections.

In Germany, the president appoints a candidate for chancellor who must then gain the confidence of parliament in the candidate’s government and his/her appointment as chancellor. Should the candidate fail in the attempt to do so (which has never happened), the right to propose a new candidate passes to the parliament, which is given 14 days to do so. This selection process also requires an absolute majority. If no candidate proves successful, a third round begins in which a candidate can be selected based on plurality of votes. And if there is still no candidate chosen, the president announces the dissolution of parliament and new elections.

What could nevertheless prevent new elections here in Israel? We can sketch several possible political scenarios, some of them more likely than others:

1. An agreement between the Likud and Blue and White parties to form a national unity government. The two factions would have to overcome some difficult challenges. These include: disagreement over the timing of Netanyahu’s recusal, if he is charged (should it happen when an indictment is issued, or when the trial begins, or at a certain stage of the trial?); changing the Basic Law: The Government, to allow the Prime Minister to be recused for more than 100 days (which is the limit set by the current law); and Netanyahu’s demand to bring with him into the government the entire right-wing bloc-- currently unacceptable to Blue and White.

2. A minority government. The scenario most widely discussed in the media (though not the only one) is a minority government headed by Blue and White and including Yisrael Beitenu, Labor-Gesher, and perhaps also the Democratic Union, with the external support of the Joint List or some of its member parties. It is important to note that the law contains no reference to the term “minority government,” and this term may be misleading. The law requires that the new government gains a proportional majority in a Knesset vote of confidence, that is, that it has more supporters than opponents. Thus, by definition, no government can be formed which is opposed by a majority of MKs. In the scenario described above, the government would win a vote of confidence with an absolute majority of 65 MKs (or 62, without Balad).

3. Yisrael Beytenu joins a right-wing government headed by the Likud and including the New Right, the Jewish Home–National Union, Shas, and United Torah Judaism, and together—they form a coalition of 63 MKs.

4. An internal “rebellion” within the Likud, leading to the replacement of Netanyahu with a new party chair. Such a development would likely make it easier for Blue and White and the Likud to reach an agreement on forming a national unity government.