This comes as an interim report, setting out the relevant parameters; final resolution is expected by the end of this week.
I would like to be brief, if that is possible given the complexities: Drawing a line somehow between providing sufficient information to bring some clarity to the current situation, without overwhelming with a host of confusing details.
Right now, the High Court ‒ an expanded Court with 11 justices sitting ‒ is deliberating on the formation of the unity government because of appeals brought before it – several of those appeal petitions brought by Yair Lapid of Yesh Atid, as well as by left wing NGOs aiming to unseat the prime minister.
Broadly speaking, there are two major issues under consideration. The first involves the eligibility of Binyamin Netanyahu to form a new government in light of the indictments against him. The law says a prime minister can continue in his position even if indicted – and until such time as he might be found guilty and had exhausted all appeals.
But, goes the charge, forming a new government is another matter. Attorney General Avichai Mandelblit had already provided the court with his opinion that Netanyahu would be permitted to continue, and the Court is not expected to advance a ruling that contradicts this position.
THE issue then is the nature of the unity government, which has been structured in negotiations between Likud and Blue & White.
The Court will make its final ruling on this by the end of the day on Thursday, the deadline for establishing that government.
President Rivlin had turned the matter of government formation over to the Knesset after Gantz failed to form a coalition. Thursday is the deadline for a majority of the MKs to recommend one of their own to form a government. If this does not happen, the Knesset automatically dissolves and elections are triggered.
Some of the petitions asked that the Court rule on the acceptability of certain provisions in the agreement, but the Court declined to do this. They do not rule on political agreements, they said, and will only rule on the legislation once it has been passed, if a petition challenging it is brought to the Court. This is notably with regard to changes in the Basic Law, and I will come back to this.
The Court did criticize certain provisions within the agreement (asking pointed questions about the provisions – thus signalling they might not look with favor upon them). Likud and Blue & White quickly consulted and came back to the Court with some adjustments. A couple of examples:
A provision that all legislation within the first six months would apply only to the coronavirus crisis has been changed so that coronavirus legislation is given priority but other legislation can advance.
And senior appointments, which were to be delayed for six months, would now only be delayed 100 days.
I do not pretend to know how this will end, but I would like to voice my own distress at what has been put together for the unity government. I find it outrageous.
The major adjustments to “Basic Law: Government” that are being planned, writes commentator Evelyn Gordon, may prove to be “a constitutional time bomb.” (Emphasis added)
“[The ‘Basic Laws’] were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed ‘Basic Laws,’ and why each addresses a fundamental constitutional issue…
“In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences…
“…many provisions simply reflect the deep distrust between Netanyahu and Gantz. And while some will expire automatically when this Knesset’s term ends, others won’t, planting potential constitutional time bombs for future governments.
“Even when alterations to a system of government are carefully thought out, exhaustively debated and not tailored to specific personal needs, history proves that they sometimes fail spectacularly. The risks are all the greater when changes are rammed through hastily, with no time for thought or debate, merely to serve specific political circumstances.
“Thus even if these changes are necessary in today’s unusual political circumstances, they must all be carefully reconsidered immediately after the next election, and probably repealed. Because any country tinkers with long-standing constitutional arrangements at its own peril.”
Gordon suggests that certain provisions, necessary for the particular circumstances of the unity government, should probably be repealed the next time around.
I suggest it might be put differently: It is a dangerous practice ‒ which establishes a precedent that undermines national stability ‒ to make changes in “Basic Law” to suit just one set of circumstances.
Haviv Retig Gur, in his extensive analysis, concludes with this (emphasis added):
“It marks a narrowing of the authority of government ministries, of parliamentary debate and negotiations, of the constitutional order itself, and it does so for one reason: as a hedge by each of the two prime ministers against their bottomless suspicion of the other.”
“…it is the coalition agreement’s subjugation of the Knesset that could have the more profound long-term effect on Israeli public life.
“Israel’s democratic order is premised on a principle that seems openly threatened by the new agreement: the demand that the government must have the confidence of the Knesset.
“The agreement weakens the Knesset in ways both subtle and obvious, short-term and long-lasting. Gantz’s demand to have his premiership approved in the coming month, even though it begins only in 18 months, locks the Knesset into a 36-month rotation…”
Other changes include “…establishing a new kind of ‘alternating’ government composed of a prime minister and an ‘alternate’ prime minister.” It’s a strange formulation, one that we have never seen before in Israel. Currently Basic Law provides for a prime minister and allows for the possibility of a deputy prime minister being appointed.
And “amending a Basic Law to allow for two deputy ministers in a single ministry, so there will be somewhere to put the 16 deputies okayed by the agreement…” The cap right now is 19 ministers; current Basic Law provides for ministers to be able to appoint one deputy minister. The cabinet, as it would be structured by the agreement, would be the largest in Israel’s history. Tal Schneider, writing in Globes, called this “grotesquely, and irresponsibly, bloated.”
With all of this, I have not touched upon the issue of separation of powers and the Court’s jurisdiction in addressing the various issues raised above (as horrendous as they may be). ). It is a matter of deep on-going concern on the right that the Court imposes itself unduly in matters more appropriately belonging to the jurisdiction of the Knesset or the government. This is a distinctly left-leaning Court with a propensity for intervening in processes that should be permitted to proceed.
The Attorney General now says that in light of clarifications submitted to the court by Likud and Blue & White, there is “no room to strike down [the] agreement or any of its clauses…
“Intervention by the honorable court in coalition agreements should be reserved for exceptional and rare cases.”
But my thought on reading this was that if this is not an exceptional and rare case, I cannot imagine what would be.
And so, there is for me considerable cognitive dissonance – one I suspect is shared by many others. Do I want to see Court intervention – to which I am very frequently opposed, to block a coalition agreement that is, in my opinion, wrong-minded and dangerous?
Similarly, I have shocked myself on more than one occasion recently, when I have found myself agreeing with Yair Lapid (who is indisputably not my favorite MK), as he critiqued this deal. He has just made the point that it was supposedly necessary because of the “crisis” of coronavirus, but that this crisis is fast disappearing. (See the following item.) Netanyahu himself just made this point, said Lapid. And so, why proceed with this in its current complex formulation?
It is with an enormously heavy heart that I acknowledge the obvious: the creation of this government is not predicated on what is best for the country.
I turn, then, to some good news.
With regard to coronavirus, Israel is doing very well indeed. Numbers continue to drop, some hospital coronavirus wards have been closed, and Prime Minister Netanyahu has announced further reduction of restrictions.
It is no small thing that grandparents can now see their grandchildren – albeit with no hugging or kissing.
Counting the days!
The Defense Ministry-run “Biological Research Institute in Ness Ziona confirmed Tuesday that it has isolated an antibody it believes could be used to develop treatments against the COVID-19 virus, and said it was ahead of the world in its efforts…”
“…it was the first in the world to reach three major milestones: finding an antibody that destroys the virus; that targets this coronavirus specifically; and that is monoclonal, lacking additional proteins that can cause complications for patients.”
The antibody will not be used to develop a vaccine, but rather a treatment that will neutralize the virus in people who have already contracted it.
Months of testing and other processes still lie ahead. The Institute wants to secure a patent, and in the later stages of testing will work towards production on large scale.
As important as work to combat the coronavirus is, there remain other serious medical concerns. And so yet another medical development here in Israel is most welcome:
“Israeli researchers say they have developed an intravenous injection to fight hospital superbugs — bacteria that are resistant to most current antibiotics.
“Yechezkel Barenholz of the Hebrew University of Jerusalem’s Faculty of Medicine and Hadassah Medical School, told The Times of Israel that the treatment is a ‘game-changer’ in the fight against antibiotic-resistant bacteria.”
With all of our concerns, we here in Israel are doing something very, very right:
“Eighteen new olim (immigrants to Israel) landed at Ben Gurion airport Tuesday evening as part of a Nefesh B’Nefesh group aliyah flight…These olim arrived amidst a wave of increased aliyah interest among North American Jews.
“Throughout April 2020, 455 new aliyah applications were submitted to Nefesh B’Nefesh (in comparison to 302 in April 2019)… May 2020 is showing a similar pattern with an even greater increase.
“Aliyah is continuing and even on the rise, as it is increasingly being considered a viable option for many Jews around the world.”
Marvellous news: This is our future.