With coronavirus shutting down much of the United States and crowding out everything else, it has been easy to miss what has taken place in Israel this week. Israel is, like most other countries, facing its own coronavirus crisis. But in addition to tackling the enormous public health and economic challenges that the virus presents, Israel is also in the midst of the most serious state and governmental crisis in the country’s history. Coronavirus has been the final ingredient in the witches’ brew of political deadlock, prime ministerial indictments, transitional governments, and extralegal maneuvers that is now poisoning the future of Israeli democracy and stability.
Prime Minister Netanyahu has remained in the prime minister’s office throughout the three elections as Israeli law dictates that the sitting prime minister is the head of each transitional government until a new coalition is formed. The problem is that in a number of ways, Netanyahu has not acted as the head of a transitional government, but as someone with the full powers of a permanent prime minister who has received a vote of confidence from the Knesset. He has done things that transitional governments are prohibited from doing such as announce plans to annex parts of the West Bank and literally redraw Israel’s borders, pass new elections laws impacting rules at polling places, and appoint ministers and ministry directors general. In instances where temporary or acting appointments have been allowed, his appointees have taken far-reaching actions that temporary appointees are not supposed to take, the most prominent example being installing a new state attorney over the objections of the attorney general. This has set the stage for a series of actions this week of dubious legality, ostensibly undertaken to address coronavirus, but that conveniently also help keep Netanyahu ensconced in his prime ministerial seat for a bit longer.
The first was an order literally issued at 1 AM on Sunday by Justice Minister Amir Ohana – appointed to his post during the first transitional government – declaring a state of emergency in the justice system. This almost immediately led to Netanyahu’s trial, slated to start this past Tuesday, being postponed. Given the restrictions on any gathering of Israelis in groups, suspending all non-essential judicial activity is reasonable, and one only needs to look to the U.S., where the Supreme Court postponed all oral arguments until next month. The fact that Netanyahu’s trial is swept into the wider coronavirus-imposed restrictions does not inherently make its postponement suspicious. But when it is done by a temporary minister in a transitional government in the middle of the night following months of prime ministerial overreach and numerous attempts by Netanyahu to gain immunity or have his trial pushed off, it is only natural to look at the move with suspicion.
At 1:30 AM on Tuesday, Netanyahu implemented new emergency measures enabling the government to use the cellphone metadata that it has apparently been compiling for over a decade to track the movements and connections of Israelis who are under quarantine. Like the emergency order for the justice system, this too might look reasonable as a policy in isolation depending on your view of the balance between privacy and legitimate emergency powers. But Netanyahu did not make do with proposing the policy; he had the cabinet adopt it rather than have the proposal be voted on by the Knesset despite the fact that the Foreign Affairs and Defense Committee had begun debating the proposal on Monday and requested additional information about the proposed tracking program. Factoring into the equation is that Benny Gantz, and not Netanyahu, received the mandate on Monday to form a new government, and that irrespective of Gantz’s chances of success, there are more anti-Netanyahu seats in the Knesset than pro-Netanyahu seats. In this environment, bypassing the Knesset altogether appears as much a strategy for sidelining it entirely in favor of the sitting transitional prime minister as it does a strategy for quickly and efficiently dealing with a public health and economic crisis.
Yesterday may have brought the most extraordinary developments of all. After Knesset Speaker (and longtime Likud MK) Yuli Edelstein prevented a vote on Monday to elect the speaker for the new Knesset, and disagreements emerged between Kachol Lavan and Likud on Tuesday about the composition of Knesset committees that have to be formed, Edelstein on Wednesday announced that he was shuttering the Knesset until next week. The practical implications of this move are not only that Edelstein remains speaker, as the 62 members of the non-Netanyahu bloc would vote for a new speaker from Kachol Lavan, and not only that Kachol Lavan does not get to control the Arrangements Committee for the new Knesset and thereby lose the power to appoint all of the other Knesset committees, but that the Knesset loses any ability to oversee government actions until Edelstein reopens the Knesset. Lest the gravity of the situation be underestimated, President Reuven Rivlin – Edelstein’s predecessor as Knesset speaker – directed Edelstein to immediately reverse course and warned that his move was grievously harming Israel’s democracy. As of this writing, Edelstein was sticking to his guns.
While the most egregious behavior is coming from Netanyahu and his Likud partners, they are not alone. One of the reasons Kachol Lavan so urgently wants to take control of the Knesset is to immediately pass legislation that would impose a two term limit on prime ministers, immediately require the resignation of a prime minister who is indicted, and prohibit an MK under indictment from forming a government. As with some of Netanyahu’s actions this week, these are proposals that are reasonable considered on their own, and very different coming in the period after an election and before a government is formed, as they are intended to influence the formation of that government and change the rules of the game after the votes have been cast. Nobody is emerging from this disastrous week covered in glory.
In the bigger picture, the coronavirus crisis has thrown into stark relief all of the problems of which everyone has been aware but that were not quite as acute over the past year. The problem with a prime minister under indictment is that everything he does is reasonably open to suspicion over his ultimate motives, and that is before factoring in that this particular prime minister has provided reason after reason to suspect that everything he does is aimed at saving his own skin from the Israeli courts’ administration of justice. The problem with not having a permanent government and forcing election after election after election is that when a genuine crisis hits, the government in place is either unable to adequately respond or must respond with measures that go beyond its circumscribed powers and authority. The problem with unbreakable political gridlock that grinds everything to a halt is that outside events do not cease when Netanyahu and Gantz cannot agree who will go first in a prime ministerial rotation, or Liberman and the Haredim won’t budge on who serves in the IDF and which minimarkets get to remain open on Shabbat.
The nightmare scenario, in which an indicted prime minister not only will not give up the reins of power but accumulates extraordinary powers in an emergency situation, is here. Whether or not Netanyahu is actually using a state of emergency to ensconce himself in office and shield himself from his legal troubles is secondary to the fact that he will never be able to convince his opponents – who constitute a majority of Israelis – that he is doing otherwise. The optics are as bad as they could possibly be, and while I think it premature to declare the death of Israeli democracy as some politicians and commentators already have, it looks dangerously close to requiring a respirator to survive.