The Legality of Cabinet Firings

The revised disengagement plan approved by a cabinet majority this week will be remembered for more than its contents. The vote was preceded by actions that in themselves represented a disengagement from orderly constitutional procedure.

The revised disengagement plan approved by a cabinet majority this week will be remembered for more than its contents. The vote was preceded by actions that in themselves represented a disengagement from orderly constitutional procedure.

The problems that became evident are due to some extent to the "the rules of the game" created by Israel's Basic Laws - but they also derive from a heedless political culture, one bereft of accepted norms and "things that just aren't done" that are to be found elsewhere, as in Britain.

This political culture, which cannot be cured by legislation, was in evidence when the prime minister decided to remove from his cabinet two National Union ministers, Binyamin Elon and Avigdor Lieberman, who represent a Knesset faction and whose opposition to separation from any part of the territories was crystal clear when they joined the government. The use of prime ministerial authority in this case raises questions about ends justifying the means.

The prime minister's legal authority to dismiss ministers has been anchored in Israeli law since 1981. The purpose of this power, as emphasized in many Knesset discussions, is to give the prime minister necessary tools to act against ministers who violate the principle of "collective responsibility" in a Knesset vote, or who trample agreements that are spelled out in coalition guideline agreements.

The authority to dismiss ministers was not meant to help a prime minister gain a majority for the government on a specific subject - the use of this power in such a case is not for any worthy end. When it comes to making positions held by cabinet ministers compatible with those upheld by the prime minister, Israel's Basic Law on the Government offers one legitimate solution - it empowers the prime minister to dismantle the cabinet by offering his own resignation.

David Ben-Gurion accorded great significance to this power. A prime minister who resigns is, of course, entitled to hope that the president will ask him to try to form the new government, one which will be more in line with his own views.

The High Court may have decided to refrain from issuing a temporary injunction to stop the cabinet vote on account of the firing of the two ministers, but Supreme Court Justice Edmond Levy was moved to wonder aloud: "Can the democratic system countenance the possibility that a prime minister may fire ministers to create an artificial majority and win support for decisions - ones which might be fateful for the state?"

The question of whether it is reasonable for a prime minister to use his authority to fire ministers so as to gain a cabinet majority will be discussed by the High Court in a number of petitions that have been submitted. Ministers Avigdor Lieberman and Binyamin Elon no longer serve in the cabinet, yet the constitutional significance of their dismissal warrants a High Court decision about the principles it raises.

In 1993, the High Court found that prime minister Yitzhak Rabin's decision not to fire Shas minister Aryeh Deri, despite indictments for serious felonies that had been filed against him, was subject to judicial review and criticism. The Court decided that the prime minister's decision not to fire Deri was not tenable.

Yet again, it remains to be decided whether firing a minister is subject to judicial review. Even if it is decided that dismissal of a minister - be it for the color of his hair or anything else - cannot be subject to judicial criticism since it is essentially a political matter involving the prime minister's right to act and govern, the issue will still be subject to public critique.

It raises the genuine issue of the reasonable use of prime ministerial authority in a parliamentary system - which no longer accords the scope of powers that was conferred by the direct prime ministerial election system. In the broad constitutional context, the problematic character of a prime minister crafting a policy measure which has broad public support, while needing to rely on maneuvers such as firing ministers to promote the initiative, cannot be ignored.

The reality which has materialized - circumstances in which the prime minister has broken his promise to members of his own party - is liable to stir new public debates about the need to review the possibility of creating a presidential system which is protected by necessary checks and balances.

The bad taste left by Israel's experiment with direct prime ministerial elections need not disqualify proposals to establish a new government system that would enable the prime minister to carry out a political and social platform. Making the leader accountable to the legislative branch, as is done in the U.S., and broadening constitutional protections provided by basic laws, would prevent repeat scenarios of "cabinet maneuvers" that make a mockery of orderly government procedure.