The High Court of Justice on Thursday gave the Knesset and cabinet 21 days to explain the amendment to the Basic Law on the Government that created the position of alternative prime minister for Kahol Lavan leader Benny Gantz.
The order to show cause is not necessarily an indication that the justices intend to repeal the amendment. At a hearing on the petitions last month, Chief Justice Esther Hayut expressed reservations over striking down the legislation, which as a basic law has constitutional status in Israel, in the absence of a formal constitution.
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The court issued the order in response to legal challenges to the arrangement that were filed by the Movement for Quality Government, the Meretz party and two nonprofit groups – New Contract and Mishmar Hademocratia Hayisraelit (the Democratic Israeli Guard). The arrangement is part of the coalition agreement between Prime Minister Benjamin Netanyahu’s Likud and Kahol Lavan and provides for a rotation in which Netanyahu and Gantz would switch roles late next year.
Hayut, Deputy President Hanan Melcer and Justice Neal Hendel said the panel hearing the case would be expanded to nine justices, an indication of its importance.
The current panel also ordered the cabinet and Knesset to address the constitutionality of another amendment to the Basic Law on the Government that restricts the Knesset’s authority to hold no-confidence votes, and another provision that requires the support of 70 of the Knesset’s 120 lawmakers to amend the basic law. These amendments were passed in connection with the formation of the ruling coalition.
“The court has never invalidated a basic law or an amendment to a basic law as unconstitutional,” Hayut noted. “That’s a doctrine that is unknown in most of the countries of the world. There’s a major question over whether to adopt the doctrine, certainly here, where there is no constitution.”
Reacting to the court’s ruling on Thursday, Knesset Speaker Yariv Levin called it “scandalous,” saying it was laying the groundwork for “crossing the red line of interference with basic laws.” The court would have no authority to do so, he claimed, calling it “contrary to the most basic principles of democracy and therefore entirely invalid.”
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Nitzan Horowitz, leader of the Meretz party and one of the petitioners, said it was an indication that the court understood that the alternate prime minister provision was a “basic change to the constitutional structure in Israel to provide approval for a crooked political deal.” He called the agreement between Likud and Kahol Lavan corrupt and “morally, democratically and legally” invalid.
The rotation agreement enabled the two parties to form a coalition government earlier this year (with additional coalition partners) following three inconclusive Knesset elections. Horowitz characterized the rotation agreement “election theft and a change to the rules of the game after the fact.”
The petitioners claim that the change to the basic law has not only created the rotation of prime ministers, but also effectively two cabinets, each headed by a different prime minister, Netanyahu and Gantz respectively. According to the petitioners, this situation paralyzes the activities of the government, resulting in deadlock due to stark differences of opinion that have frequently marked cabinet deliberations. Both major parties have wide-ranging veto powers on decision-making.
The arrangement does harm to Israel’s parliamentary democracy, the petitioners claim. The Movement for Quality Government argued that the rotation agreement is unconstitutional and that the formation of the coalition government “abused the authority of the Knesset.”
In May, the High Court denied several petitions that had challenged the coalition agreement between the two parties. The rotation arrangement was called into question then as well. The justices called the coalition agreement “unusual” and said some of its provisions raise “considerable difficulties,” but the court declined at that point to intervene.