Should Israel’s Court Accept a Flawed Coalition Agreement?

Israel’s Supreme Court convened for a second day of discussions Monday, focusing on the coalition agreement. Is this agreement legal? If not, the basis on which the new government is supposed to form will be unstable. If parts of it are declared illegal by the court, there may be no government. It’s what the attorney representing Prime Minister Benjamin Netanyahu argued before the court this morning. He explained that special circumstances necessitate special arrangements. He also warned that if these arrangements aren’t upheld by the court it is likely that Israel will be forced into a fourth election.

1. Yesterday and today

On Sunday, the justices seemed unconvinced that the case against Netanyahu was strong. Of course, one never knows what they really think, but some of their questions might have hinted that they do not feel comfortable with the idea of not letting the prime minister keep his job. Indeed, the case was not very strong.

On Monday it was a different story. The case was more solid. To form a coalition, the Knesset is slated to change basic laws without much debate, as an interim government.

2. The case for the agreement

The case for the agreement is simple, short and has two main parts:

1. We have no choice. After a year of campaigning and three election cycles, this is the only arrangement that could prevent another vicious cycle of election and failure, election and failure.
2. We have a majority. With close to 80 supporters in the Knesset, the supposed changes to the law cannot be considered unintentional. This is not theft by an accidental majority — this is something that a clear and significant majority of the people (represented by the Knesset) support.

3. The case against the agreement

Arguments were made against many details in the agreement. The opposition will not have enough representatives as heads of Knesset committees, so the argument is that the agreement is oppressive toward the opposition. The response to this argument was that the Knesset has rules. Letting the opposition head just one committee (rather than two or more as is customary) is compatible with the rules. And what of the argument that there is a long tradition of letting the opposition have more than one committee? The answer in this case is: These are not ordinary times that require not ordinary measures.

4. This is not the time

The justices were very unhappy with the fact that the new government will not appoint many senior officials. The chief of police is one such example. Some of these positions have been waiting for more than a year to be filled. According to the agreement, in the first six months of the government all interim appointments will remain in place, and several important positions will stay vacant. What is the answer to such unease? The attorney for the Likud party argued we are in a state of emergency. We must deal with other things first, and with appointments later. The justices were still dissatisfied. So, because of a virus you can’t appoint a chief of police? For how long? The attorney was adamant: for as long as it takes and as long as it’s legal. In due time, if the court feels that the government is doing something illegal, it can always decide to intervene. But it does not have a reason to intervene now and sabotage a political arrangement without which there will be no government, and no appointment.

5. What’s at stake?

Toward the end of the day, Justice Mazuz made a passing comment that highlighted what everybody knows. There is no dark secret behind the agreement. This is an agreement whose aim is clear — to have a government with Netanyahu as prime minister. All the tricks and twists and legal maneuvers and acrobatic language are being employed because the alternative is political chaos.

The plaintiffs argued that the coalition is trying to intimidate the court by arguing that a ruling against it would prompt another election. Mazuz said this is not intimidation, this is fact.

Indeed, it is. And the court must walk a fine line as it considers the many quirks of a flawed political agreement that the two parties produced after a long year of campaigning. The court often has the authority to make a ruling without having to see the connection between its decisions and their consequences. But this time is different. This time, the link between a ruling and its implications — coalition or election — is clear. That’s a good thing.

6. The good news

The court must decide by Thursday, because if the mandate to form a government is not extended, Israel will have a fourth election.

For comments on the arguments made yesterday, for and against the legality of Netanyahu’s expected term as the prime minister, click here.