Think About It: The use of temporary orders to amend basic laws

Why is Netanyahu’s fourth government reintroducing a biennial budget for the third time by means of a temporary order?

BENJAMIN NETANYAHU and finance minister Moshe Kahlon. (photo credit: REUTERS/BAZ RATNER)
BENJAMIN NETANYAHU and finance minister Moshe Kahlon.
(photo credit: REUTERS/BAZ RATNER)
Between July 20 and July 28 the Knesset Finance Committee held seven meetings on Basic Law: the State Budget for the years 2017 and 2018 (special provisions, temporary order). This Basic Law is the third amendment to Basic Law: the State Budget for the years 2009 and 2010 (special provisions, temporary order), which introduced the first Biennial Budget during Netanyahu’s second government.
When the original law was introduced there were objections not only to biennial budgets as a regular feature (as opposed to an occasional occurrence, when early elections disturb the regular budget introduction process), but to the introduction of a basic law (or the amendment of a basic law) by means of a temporary order (hora’at sha’a).
At the time the argument in favor of the procedure were the early elections held in February 2009, before the budget for that financial year had been approved by the previous, Kadima-led government. The Basic Law: the State Economy provides for annual budgets, so given the novelty of the biennial budget idea the provisions for such a budget should be introduced as a temporary order in a separate basic law.
Should the experiment succeed, said the idea’s advocates, it should be introduced as an ordinary amendment into Basic Law: the State Economy.
The minutes of the seven recent meetings of the Finance Committee have not yet been published, but I have been informed that the original intention, which apparently will not be realized, was that this law be debated in the Knesset plenum in first reading before the Knesset goes out for its summer recess next week.
Why is Netanyahu’s fourth government reintroducing a biennial budget for the third time by means of a temporary order? My guess is that it has something to do with the fact that Finance Minister Moshe Kahlon objects to the biennial budget on principle, but as he himself stated after the Cabinet meeting on July 17 that approved the budget, he is committed to it through the coalition agreements. Leaving the biennial budget a temporary provision is thus a palliative to pacify Kahlon temporarily.
Why is Netanyahu so adamant about the biennial budget, which is very much a fiction since it is impossible to predict the budgetary requirements two years in advance, and so drastic amendments must be introduced into the budget in its second year? It is because a biennial budget ensures that a serious debate on the budget as a whole will be held in the Knesset only once every two years, thus drastically restricting the Knesset’s ability to effectively supervise the government’s activities, which is one of Netanyahu’s major goals.
One sometimes actually gets the impression that nothing would make Netanyahu happier than a system by which elections were held every four years, and after the new government is formed (under his leadership, of course) the Knesset should simply go into hibernation for the rest of the Knesset’s term, and let the government “get on with it” without “interference.”
But the greater problem is the continuous, cynical use made of temporary orders to amend or pass basic laws. All the constitutional lawyers I know agree that the use of temporary orders in this way turns the Basic Laws – the closest thing we have to a constitution – into a dishrag used by the government to clean up the messes it gets itself into, and is problematic and unconstitutional.
But when the end justifies the means, and the end is survival at any cost, then this is what you get.
Incidentally, the Netanyahu government has used temporary orders not only to create the legal basis for the notorious biennial budgets. Back in October 2015 it used a temporary order to introduce the “little Norwegian Law,” which enables one minister or one deputy minister from each party in the coalition to resign from the Knesset in order to enable another member of their party’s list to enter the Knesset as a full-time MK.
In this case the temporary order was used to Amend Basic Law: the Government.
In principle there is nothing wrong with the Norwegian Law, which exists in several European countries, including Norway, and under which members of parliament who become ministers resign their parliamentary seats. Since the 1970s numerous bills have been submitted in the Knesset to introduce the system in Israel. The system makes a lot of sense in a country with a relatively small parliament and relatively large government. In Israel when the government’s parliamentary base is relatively narrow, and for coalition reasons the number of ministers and deputy ministers is outrageously large, the government faces serious problems in the Knesset, which the chairman of the coalition is expected to provide redress.
So why doesn’t the government act to introduce the Norwegian Law as a permanent feature in our system, resorting instead to a problematic temporary order? Well, first of all because it can, and secondly because this particular government seems to live from crisis to crisis, rather than consider how to stabilize the system by creating a broad consensual government, apparently preferring the current setup and sloppy, unconstitutional solutions.
The writer is a political scientist and a retired Knesset employee.