Brent E. Sasley, University of Texas at Arlington
The first case of the novel coronavirus in Israel was confirmed on February 21. As of April 6, Israel had over 8,900 cases of COVID-19, and 57 people have died from the virus. The government reacted relatively swiftly to the pandemic, especially compared to other governments, such as in Italy and the United States.
At the same time, it is struggling in key areas: containing a rapid spread of the disease in Orthodox communities, many of which have refused to stop congregating in large numbers in synagogues and yeshivas; preparing for the period of Passover, when millions of Israelis will have wanted to hold services and a commemorative dinner with family and friends; and confronting a lack of testing and medical infrastructure in several areas populated by Arab citizens.
This patchwork of efficacy highlights the ways in which Israel exhibits both high and low state capacity in dealing with the infection. The crisis has also had different types of effects in Israel compared to its regional neighbors because of the country’s democratic structures. There has thus far been one major political effect and one constitutional effect.
First, the crisis strengthened Benjamin Netanyahu’s bargaining position in the race to form a new government after three elections in which he was unable to win a strong enough majority in the Knesset. This is a short-term effect. Second, the urgency of stopping the spread of the disease facilitated Netanyahu’s weakening of the constitutional order, by subjecting the judicial system to his political whims and by undermining the authority of the Supreme Court. This is a long-term effect.
The Political Effect
Netanyahu has been Prime Minister of Israel since March 2009 (in addition to a three-year period from 1996 to 1999). In April 2019, Netanyahu faced his first serious challenger in many years: Benny Gantz of the Kachol v’Lavan party, who at least potentially commanded enough seats to form a government. But the emergence of COVID-19 enhanced Netanyahu’s position by allowing him to present himself as a competent manager of the country’s welfare and safety, at the expense of his rival’s credibility.
In December 2018, the government collapsed and early elections were held on April 9, 2019. Netanyahu’s Likud and Kachol v’Lavan both received 35 seats out of the 120-seat Knesset. But neither leader had enough support from other parties to put them over the 60 seats necessary to form and maintain a coalition government. New elections were called for September 17, 2019. The results were similar to the April election: Kachol v’Lavan received 33 mandates, while Likud won 32.
On November 21, 2019, Netanyahu was indicted for corruption and breach of trust in three separate legal cases, leading many to believe that his long political career might finally be coming to an end. But the September election had not changed anything; neither Gantz nor Netanyahu had enough support in the Knesset to form a government. Their positions were far enough apart that they could not agree on a unity government that included both of them. Yet another new election was called, for March 2, 2020.
By the time the third round of polling took place, the novel coronavirus had hit Israel. At the same time, Netanyahu’s trial was set for March 17. Netanyahu was desperate to avoid a trial, since it would likely mean the end of his tenure as prime minister and probably end his political career. It was also widely assumed that Gantz was in a stronger position now, with the trial coming soon and Netanyahu’s failure to improve his bargaining position over two elections.
The March election gave Likud 36 seats to Kachol v’Lavan’s 33. But after a long struggle between the two, Gantz was able to garner enough parliamentary support, with the backing of the Arab Joint List, to be given the mandate on March 15 to start negotiations on forming a government.
While coalition negotiations were ongoing, Netanyahu began to take a more public role in explaining his caretaker government’s efforts to deal with COVID-19. These included increasing restrictions on public activity. On March 11, the government began implementing versions of stay-at-home requests, and on March 19 declared a set of national “emergency ordinances.”
Netanyahu ramped up pressure on Gantz to form a unity government shared by the two parties. On March 21, for example, Netanyahu said in a televised interview that he would share the prime ministry with Gantz, offering to rotate the office halfway through the Knesset’s four-year term.
Public opinion reinforced Netanyahu’s arguments. In March, an Israeli Voice Index survey, by the Israel Democracy Institute, found that 76% of citizens “greatly” or “moderately” feared that they or a family member would become infected with COVID-19. More telling, the priority was for a national unity government: 57% preferred that option (36% wanted Netanyahu to serve as prime minister first, 21% wanted Gantz to go first). Finally, the poll found that 60% of Israelis judged Netanyahu’s handling of the crisis to be “good” or “very good,” while only 34% said the same for Gantz.
Gantz responded on March 26 with a major turn-around. Referring to the onset of COVID-19, Gantz called it an “emergency” that required a government that could bring the country together. To that end, Gantz proposed himself as speaker and, breaking repeated campaign promises, pronounced that he was willing to serve in a government under Netanyahu. Under the terms of a draft deal, Netanyahu would serve as prime minister for the first 18 months, after which Gantz would rotate into the office.
Gantz’s defection gave renewed life to Netanyahu’s campaign to remain prime minister. The gambit may fail. Even if negotiations are successful, there is a chance that Netanyahu will manage to pass a law by the time set for rotation that brings him immunity from prosecution and trial, thereby enhancing the likelihood that he will stay in power even beyond the date the two leaders set for rotation.
There is an even greater chance that developments over the next year and a half will weaken Gantz considerably (his party has already split in half after his desertion), such that Netanyahu might be able to hold on to power with enough Knesset votes, or call a new election in which he and Likud emerge stronger. For example, Netanyahu might survive his trial, or an urgent external security threat emerges that allows him to push off rotation in the name of national security.
Netanyahu may be genuinely concerned about the infection, and want to protect the country and its citizens from the disease. But his political maneuvering indicates that he also saw this as an opportunity to save himself from political death.
The Constitutional Effect
Whether or not Netanyahu succeeds in staying in power in the short-term, the damage he has done to Israel’s legal and constitutional frameworks is long-term and will outlast him.
Netanyahu engaged in a series of moves designed to subvert the existing constitutional order to protect himself from prosecution. First, on May 14, he had the Justice Minister, a close ally; declare a state of emergency due to the spread of COVID-19. The decision meant that the courts could only meet for urgent purposes, such as arrest and remand orders. An effort to hold criminal proceedings via video call was restricted by Netanyahu supporters in government to defendants already in custody. Because Netanyahu was not, his trial was postponed until May 24.
Second, the Speaker of the Knesset, Yuli Edelstein, another Netanyahu ally, refused to hold a vote for a new speaker, under the assumption that a Gantz supporter would be selected and the parliamentary agenda subject to Gantz’s preferences. His first explanation was that this was necessary to protect Israelis from further infection. By doing this, Edelstein also blocked the Knesset’s creation of a new Arrangements Committee, which according to law organizes new Knesset committees by assigning memberships and chairs to the parties in the parliament.
The Supreme Court first issued a non-binding declaration that the Speaker could not postpone the vote and then, when Edelstein still refused, ruled unanimously that the Speaker had to hold a vote. Edelstein ignored the court again, and resigned rather than proceed, delaying the process further.
Israel does not have a written constitution. Instead, a series of Basic Laws serve as quasi-constitutional laws that have higher status than other legislation. But the lack of a single document makes the Basic Laws easier to amend, remove, or add to. This serves as a somewhat tenuous basis for the courts to exercise judicial oversight over the other branches of government.
Since 2009, several of the rightwing and religious parties have engaged in a slow but sustained effort to curtail the authority of the courts even further. After having seen the Supreme Court try to force Edelstein to hold a vote the rightwing parties wanted to avoid, they are likely to renew their efforts. Edelstein’s precedent of ignoring the Court will also be the foundation for future similar decisions.
These efforts have centered around trying to reduce the Supreme Court’s ability to limit or reject laws passed by the Knesset, primarily by changing the laws (including the Basic Law: The Judiciary) and by changing how justices are selected.
When the Speaker refused to give up power in order to keep Netanyahu in office, the legal norms and structures that have kept the political system intact were further eroded. Defying the Supreme Court’s ruling to obey the law constituted an even greater breach of the constitutional order, and undermined the ability of the courts to maintain themselves as a separate branch of government.
Gantz’s decision to join Netanyahu represented tacit permission for this assault. Thus, the main rightwing and center-right parties have now agreed in principle that the legal system can be ignored when its suits their politics. While the judicial system is not in danger of immediate collapse, further efforts to chip away at the legal and constitutional order are more likely now, and more likely to be successful.
That Netanyahu has worked to prevent his trial will further strengthen the Prime Minister at the expense of the courts. If he succeeds in avoiding trial after an indictment, future premiers will exhibit less concern with potential corruption, knowing that there are ways around accountability.
Although Israel proudly calls itself a democracy, with the people electing their leaders and the rule of law paramount over the interests of individual leaders or parties, the coronavirus pandemic has allowed for a useful comparative approach to studying the effects of COVID-19 in Middle Eastern states. It has done so by showing that both autocracies and democracies have imposed restrictions on the public in part to stop the spread of the infection, but also out of political expediency.