Last week the High Court of Justice stated, within the framework of its deliberations on a petition by Yesh Atid concerning the appointment of United Torah Judaism MK Yaakov Litzman as deputy health minister with the status of a minister, that this arrangement is unacceptable and illegal. Litzman must either be appointed minister, act like a deputy minister in accordance with the law (i.e. perform certain duties delegated to him by the minister), or resign, said the court. Six years ago the court had already expressed its displeasure with the arrangement – but this time it appears to have decided to put its foot down.
The reason Yaakov Litzman is not a full-fledged minister is that since 1949-52, when MK Yitzhak Meir Levin from Agudat Yisrael served as welfare minister in David Ben-Gurion’s first three governments, members of the Ashkenazi haredi (ultra-Orthodox) parties have refused to accept the position of minister, since this implies not only recognition of the Zionist state (which they have done to date half-heartedly and with many reservations), but also participation in the responsibility for everything the government of the Zionist state does, within the framework of collective responsibility.
It is assumed that if the court finally rules that Litzman cannot remain deputy minister while acting as a minister, the conservative, octogenarian leadership of the Ashkenazi haredi parties will be forced to give in on this issue – not least of all by their own pragmatic MKs. If this happens it might well constitute a first step toward a more significant change in the attitude of the haredim toward the state, which would certainly be a welcome development.
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The court not only expressed its reservations regarding Litzman’s formal status but went one step further, expressing misgivings about the fact that Prime Minister Benjamin Netanyahu has not only assumed the position of health minister in order to comply with the demands of the haredim, but has also kept in his hands the ministries of foreign affairs, communications and regional cooperation – each for different reasons.
Supreme Court Justice Hanan Melzer went so far as to state that according to the latest version of Basic Law: the Government, the prime minister cannot hold permanent ministerial posts in addition to that of premier, though he can hold such posts for an interim period, in the event of a minister being temporarily incapacitated, or passing away.
Though this interpretation of the law can be contested, Melzer’s statement has encouraged Yesh Atid to consider amending its petition to the court, to cover all the ministries held by Netanyahu “so that it will be absolutely clear that each portfolio is held by a full-time minister.”
The broader issue is certainly worthy of serious consideration, especially since the current government seems to have gone to much greater extremes than any of its predecessors in its structural distortions.
The need for a large government, in terms of the number of ministers and deputy ministers, usually arises when the coalition is supported by a large majority – not when it is based on a narrow majority as is the current government.
The main reason for the current distortion is the greediness of the Likud MKs. Of the Likud’s 30 MKs, 12 are full-fledged ministers, and another four (including two first-term MKs!) are deputy ministers.
Of course, it is perfectly legitimate for MKs to have ministerial aspirations. In fact, in the academic literature on the roles assumed by MKs, there is a category called “ministerial aspirants.” However, to have over half the MKs of the ruling party insist on joining the government is not merely a distortion, but a perversion.
What is most astounding in this situation, is, first of all, the fact that Netanyahu didn’t call his Parliamentary Group to order, and insist on at least two-thirds of its MKs (20 in number) serving as full-time MKs, in order to do the necessary parliamentary work – especially committee work – properly. In giving in to his MKs he not only proved weak, but also that he doesn’t seem to give a damn about efficient parliamentary work, much to the delight of the opposition, which is having a field day making the life of the coalition hell.
The second astounding fact is that under these circumstances Netanyahu himself insists on holding five portfolios. This means that the Likud itself holds 16 full ministerial posts, in a situation where the law (until it was recently manipulated) calls for a government of no more than 19 ministers.
As mentioned at the outset, Netanyahu is holding the post of health minister to let the Ashkenazi haredim have their cake and eat it too. He is holding the post of foreign minister (having distributed many of its important functions among another four ministers, and a deputy minister) formally in order to keep it for the leader of either Yisrael Beytenu, the Zionist Camp or Yesh Atid, should one of them decide to join the coalition.
He is holding the Communications Ministry because he reportedly has a personal account to settle with both the written and electronic media, and last but not least, as stated above he is holding the Ministry for Regional Cooperation.
Though there is apparently some military coordination going on with Egypt and Jordan in connection with the struggle against Islamic State (IS), “regional cooperation” is not exactly something the current government is committed to. So what is the point of having a Ministry for Regional Cooperation, and why is it headed by Netanyahu? But to return to Yaakov Litzman. Should Netanyahu be forced by the court to appoint him Health Minister, he will once again face an arithmetic problem, since Basic Law: the Government enables him, for the duration of the 20th Knesset, to have no more than 22 ministers in his government.
Seventeen days after forming his current government, Netanyahu forced the hapless Benny Begin to resign as minister without portfolio because he needed a ministerial position for Gilad Arden, who when the government was first formed played hard to get, and didn’t join it.
Who among the Likud minister will Netanyahu force out this time? And what will he do if the court decides that he must give up his three remaining ministries as well? One possibility is that once again the government will try to amend Basic Law: the Government, thus turning this battered basic law, which is a constitutional law in its essence, into a rag doll.
The second possibility is that Netanyahu will finally decide that the current set-up of his government is impossible, and act as Ben-Gurion was accustomed to in the course of the first few Knessets: resign whenever his coalition became unbearable, and immediately start forming a new government, either with the same parliamentary group make-up but a different distribution of portfolios or different basic guidelines, or with a different parliamentary group make-up.
Unfortunately the latter option – which is the one most appropriate in the current situation – is unlikely to be selected by Netanyahu, because it involves risks concerning his continued premiership.
This means that we are likely to have the government go into all sorts of legislative contortions, involving votes that are won or lost by the skin of the government’s teeth.
The opposition will have a few more field days, and Israel’s democratic system will once again be subjected to spin, both in the literal sense and the media one.
But who knows, maybe the court will simply retract its unexpected activist move, and let Netanyahu be – constitutionally or unconstitutionally.The writer is a political scientist and a retired Knesset employee.