Constitutional changes in the post-Netanyahu era

One of the most burning issues that must be addressed concerns transition governments.

Prime Minister Benjamin Netanyahu in Mevo'ot Yericho in the Jordan Valley (photo credit: HAIM ZACH/GPO)
Prime Minister Benjamin Netanyahu in Mevo'ot Yericho in the Jordan Valley
(photo credit: HAIM ZACH/GPO)
The political events of the past few years suggest that there is need to clarify or change certain constitutional and administrative provisions. This will be possible only after the Netanyahu era is over – either in a few months’ time or later, should Netanyahu manage to remain prime minister after the March 2 election.
Among the issues that require urgent legislative or regulatory change are: limitations and restrictions on transition governments; the length of the term of office of the prime minister; the law applying to an indicted prime minister; and proscribed activities by contenders during election campaigns.
The debate on the necessary changes cannot be completely detached from the Netanyahu premierships, since the need for them emerged in their course, but the outcome must be as politically neutral and unvindictive as possible.
One of the most burning issues that must be addressed concerns transition governments. When the current provisions were introduced, no one imagined a situation in which three elections would be held consecutively within one year. What has happened is that Netanyahu has been serving as the nonelected prime minister of an endless transition government, appointing controversial ministers whose appointment does not require the approval of the Knesset, and who in turn have embarked on controversial policies, and even the appointment of senior officials, who are themselves controversial appointments – again all without any parliamentary oversight.
This is an unbearable state of affairs, and the only way to deal with it is to ensure that if after elections a new government is not formed and additional new elections are called, a caretaker government, made up of civil servants or experts, should be appointed, to preserve the status quo until such time as a new government is finally formed. Who should head such a government is a question that deserves serious debate.
One thing is clear. If this were the provision, the motivation for calling consecutive new elections would probably disappear. After all, Netanyahu’s main (perhaps only) motivation for calling three consecutive elections has been his wish, as a result of his legal predicament, to remain prime minister for as long as possible, even though he failed twice to form a new government. With a nonpolitical caretaker government, he would be unable to do this.
UNLIKE THE United States, which has a presidential system, in all parliamentary democracies there is no limit on the number of terms or years that a prime minister may hold office.
In Israel, the idea that such a limit should be set first emerged when Basic Law: the Government, which introduced the direct election of the prime minister, was being debated in the years 1990-1992. In the final version of the law, article 8(b) stated that “whoever has served as prime minister for seven consecutive years shall not be a candidate in elections to the [premiership] immediately thereafter.”
At the time Netanyahu supported this provision, and in 1997, while serving as prime minister for the first time, he said in a TV interview that he still supported this provision since “if we won’t do what is necessary in the first term, perhaps we shall do it in the second, but you don’t need any more than that,” adding that he would be happy to leave the job after two terms and do other things.
This article was deleted when the direct election of the prime minister was repealed in 2001. Several unsuccessful attempts have been made to return it in recent years.
The main reason why all these initiatives failed was the fact that now Netanyahu objects. The main arguments in favor of such a change are that Netanyahu himself has proven that too many years in power are corrupting, and that no prime minister should get to the point where he feels that the job is his by right, and that no one else – either from his own party or from any other party – is capable of performing the job as well as he does.
Today a prime minister who has been indicted and put on trial can continue to serve until such time as he has been found guilty and sentenced on criminal charges involving moral turpitude in a final court instance. In the only previous case in which there was a decision to indict a serving prime minister, Ehud Olmert decided to resign before he was actually indicted. Unlike Olmert, Netanyahu has refused to resign, which is why there are calls for the law to be changed.
The ruling that a minister who has been indicted must resign from the government (but not from the Knesset) and, if he fails to do so, should be fired by the prime minister was issued by the High Court of Justice in the mid-1990s in the case of Arye Deri, as a result of which the law was changed.
No such ruling has been given to date with regards to the prime minister, and unless this will happen in the foreseeable future, after Netanyahu will no longer be prime minister, there are good chances that there will be initiatives to change the law also with regards to prime ministers, based on moral arguments and arguments relating to basic legal and public norms.
THE ELECTIONS Law (propaganda means) includes a multitude of provisions to prevent unfair and objectionable election propaganda. In light of the increasingly uninhibited means of election propaganda utilized by the prime minister, which are either not mentioned in the law or, if mentioned, are not enforced, the provisions of this law ought to be revamped.
For example, the systematic, libelous statements about Israel’s Arab citizens in general and prominent Arab political figures who have not committed any crime against the state must be put an end to. This, of course, should be applied to other libeled minority groups and sectors as well.
Another example of highly problematic propaganda is all the enhanced and exaggerated international activity of the prime minister crammed into a week, which made him look like the Energizer Bunny gone amok. The presentation of the “Deal of the Century” in Washington, followed by the prime minister’s trip to Moscow to “pick up” Naama Issachar, and then the trip to Uganda to meet the Sudanese leader (a meeting that should have taken place in secret, if it were really serious) were all welcome activities in themselves, but not when the timing was obviously dictated by the elections, the cost was covered by the budget of the Prime Minister’s Office rather than that of the Likud election budget (and deficit), and the motive was to prove to the voters what a great leader Netanyahu is.
Incidentally there is also an urgent need to clarify the rules and regulations regarding the running of the prime minister’s official residence, such as which expenses should be covered by the state, and which must be paid for by the prime minister himself.
Yes, there is a lot of cleaning up that needs to be done.