Two Hedgehogs and a Hydra

This is a familiar plague: rewriting the game rules of democracy to suit changing political circumstances has become the norm in Israel.

Flash 90

The coalition agreement – the prickly embrace of two hedgehogs – is better than many feared it would be but worse than they had hoped it would be.

The two Benjamins certainly deserve credit: Blue and White Party leader Benny Gantz strode bare-chested into a free-fire zone. Many consider his agreement with Prime Minister Benjamin Netanyahu to be a doomed trek to Petra from which “no one has yet returned alive.”

When he linked up with Netanyahu, Gantz shattered the hopes of half the population for a total change in the government and broke one of his key election promises. But as he sees it (and I believe him), he kept true to another promise: the country comes first. 

Netanyahu, the ultimate survival wizard, has finally set an expiration date on his one-man rule. Even those who suspect that he will weasel out of his pledge acknowledge that something major has changed in the country. The two men responded to the call of the hour. The storm raging from all directions – a medical, economic, social, local and global crisis whose dimensions remain uncertain – makes a stable regime absolutely essential. And this, we must hope, is what the agreement will indeed achieve.

Even though impressively creative legal minds forged the agreement, the result evokes legal discomfort, to put it mildly. It requires major amendments to current basic laws. 

This is a familiar plague: rewriting the game rules of democracy to suit changing political circumstances has become the norm in Israel. The tender shoots of an Israeli constitution, woven into the basic laws, are ripped to shreds. Achieving short-term political stability is coming at the price of constitutional instability for the long term.

For example, cutting back the Knesset’s term from four years to three touches on a central and sensitive mechanism of democracy. This is a dangerous constitutional game: If the term can be cut back, can it also be extended? 

There is agreement on enacting a “Norwegian Law with skips,” which would alter – post factum – the order in which candidates begin serving in the Knesset. This infringes on the right to be elected of those skipped over and the right of the public to have its electoral preferences respected. These and other arrangements are wide open to judicial review.

Gantz’s main achievement is the “democratic package” that is part of the agreement. This is the basis for his demand for the Justice, Communications, and Culture ministries. His goal is to block a Knesset tsunami against the judicial branch and the rule of law. 

Since all new legislation will require the consent of both partners, an override clause that would pose a threat to human rights will not be enacted; the procedure for appointing judges will not be altered; and the judiciary’s independence will be preserved. The new attorney-general and his deputies, as well as the state attorney, will be chosen in the same way as in the past. 

In general, politicization of the law-enforcement authorities will be averted. Unfortunately, all of this constitutes something of a temporary truce with a life expectancy identical to that of the current government, and is thus quite shaky. Gantz and Netanyahu must act immediately and together to reframe the relationship between the “political” and the “judicial,” both keeping their minds open to the demand for change in the current situation, while maintaining due respect for the principle of the separation of powers. History will thank Gantz for preventing a disaster, at least for now but the bulk of the struggle to safeguard democracy still lies ahead of him.

While the democratic package does prevent a blow to the judicial branch, it strongly undercuts the legislative branch in a way that ties the sovereign power’s hands. The gargantuan government, a scandal in its own right, means that there will be fewer legislators available to perform their duties. 

The agreement claims to rule out legislation that is not related to the coronavirus crisis for the duration of the emergency – at least six months. Even after that, coalition members are committed to oppose bills that have not received the approval of the government. 

The possibility of a vote of no-confidence in the government is effectively nil. The opposition is trampled underfoot by being deprived of the chairmanships of Knesset committees that were traditionally reserved for it. 

There are three other blows against the Knesset on which the High Court of Justice is likely to intervene: a change in the tradition that a representative of the Knesset opposition sits on the Judicial Appointments Committee; the switch to a two-year budget, which weakens parliamentary oversight of the government; and the arrogation by the government of the decision on military conscription of ultra-Orthodox men, formerly a matter for the Knesset. 

The High Court has already spoken on each of these issues in the past, or raised red flags, stating that it would intervene in the future, if warranted. 

At the heart of the legal issues is that the new government is not based on rotation, that is, one Prime Minister at a time serving in succession. Rather, this is a government with two heads throughout its tenure. Two hedgehogs, neither of whom trusts the other, create a new legal structure: a hydra, the many-headed monster of Greek mythology. 

The story says that only Hercules could finally subdue and kill the beast. The High Court would rather not play that heroic role but will it have a choice?

The article was published by the Jerusalem Post.