Benny Gantz, the leader of the Kahol Lavan party, has been warning over the past several days of an “April plot.” According to his “nightmare scenario,” if his party fails to secure the minimum 3.25 percent of the vote in the March 23 Knesset election, Prime Minister Benjamin Netanyahu might dismiss him and the other Kahol Lavan cabinet members from the transitional government.
The step, Gantz said, would enable Netanyahu to take advantage of the interim period until a new government is formed to “eliminate his trial, arrange immunity, dismiss the attorney general [and] dismiss the state prosecutor. Everything we are fighting for, everything is going to fade away,” said Gantz, who is defense minister and alternate prime minister, in remarks to Channel 12 on Monday.
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Gantz’s theory is based on dramatic deficiencies in the wording of the amendment to the Basic Law on the Government that Kahol Lavan and Netanyahu’s Likud party drafted and which provides for parity in the current cabinet between the two parties. At the time, Kahol Lavan did not anticipate the prospect that the alternate prime minister's party would fail to pass the electoral threshold in a subsequent election, but Gantz’s theory is now becoming the cornerstone of his party’s “gevalt” campaign to attract the support of additional voters and get the party past the minimum electoral threshold.
Is such an April plot possible? Does the law permit Netanyahu to dismiss Gantz and his party colleagues to sabotage the judicial system? Jurists who have considered the Basic Law on the Government, which enshrines the current parity between Likud and Kahol Lavan, are divided on the issue.
Attorney General Avichai Mendelblit, who could have already ruled now on whether there is substance to such a scenario, has decided not to do so. Sources at his office called it a “theoretical issue,” but it also has practical implications. If Gantz considers dropping out of the election campaign to buttress the parties working to defeat Netanyahu, he might encounter a similar situation in which Netanyahu dismisses him even before a new government is formed. Before making a decision, he would also need a ruling in advance on the implications of his resignation from political life.
The amendment to the Basic Law worked out by Kahol Lavan and Likud had provided for a rotation of the prime minister’s position, with Gantz taking over as prime minister in November.
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Surprisingly, Gantz, who has turned the legal issue that he has raised into part of his campaign, has not contacted Attorney General Mendelblit and has not asked for a formal legal opinion from him that might pave the way for his term in office to continue even if he quits the race or is not elected to the next Knesset.
“The attorney general is the authorized interpreter of the rotation government,” said Prof. Suzie Navot, an expert on constitutional law at the College of Management Academic Studies. “Gantz is entitled to receive a legal opinion from the attorney general regarding his status as alternate prime minister if he quits. It has huge significance.”
Navot believes that contrary to the concerns expressed by Gantz, it is not possible to dismiss Kahol Lavan ministers from a temporary cabinet if they are not elected to the next Knesset. “The government that is serving at the moment is a transitional government,” Navot told Haaretz. “According to the Basic Law, it continues in office until a new government is established. That, in my opinion, is without connection to the results of the election.”
Navot’s assessment is that, even though the law requires that the formation of a new government must only be entrusted to a serving Knesset member, Gantz would be able to be appointed to the position of prime minister even if he is not a Knesset member if the time comes for the rotation in November and there is no other permanent government.
“The current government received the confidence of the Knesset,” she said. “Gantz received confidence as alternate prime minister, confidence that also included the date for the rotation. My argument is that Gantz is a prime minister in a transitional government. The confidence required is from the moment of his appointment, which was given to him when he was a Knesset member [in] May 2020.”
Navot is not alone. Dr. Amir Fuchs of the Israel Democracy Institute believes that the law requires the continued existence of the government with parity between the two parties in the cabinet following the election. “There is a lacuna here and therefore there’s also a measure of uncertainty that would be clarified through an opinion from the attorney general or a court ruling. That’s what happens when you change the system of government in five days of Knesset debate, between midnight and 4 in the morning, when there were almost no experts at these debates. It’s bizarre that it’s possible to amend Basic Laws [in Israel on] how they elect a prime minister. Ultimately we cannot say whether the prime minister can or cannot dismiss ministers following the election.”
Over the past several days, other jurists have given backing to Gantz’s concerns. In an interview to the Kipa website, Prof. Aviad Hacohen, the president of the Academic Center for Law and Science, said, “As I see it, and that’s also what history and the letter of the law teach, in the parliamentary system of government in Israel, a prime minister, unlike a minister, must be a Knesset member.
“If Gantz wouldn’t be a Knesset member, either because he quit or isn’t elected, the entire mechanism involving the alternate prime minister collapses together with him, like a multi-story building when its foundation slips away. The entire tower collapses. In that case, the original arrangement in the Basic Law on the Government remains in force, according to which the prime minister has authority to dismiss cabinet ministers, and that it’s sufficient to notify the cabinet about it.”