Building A Jewish Democracy

Israel Liberty Monitor

VOLUME III ISSUE 4 ____ 4 Av 5768 / August 5, 2008

What Happens After Olmert Resigns

 

On September 17 the Kadima party will hold primaries for a new leader. If no candidate receives a plurality of over 40% of the vote, a runoff between the two leading candidates will be held on the 25th. Soon after the primaries are over, probably within a week, Ehud Olmert will resign as Prime Minister.

 According to article19 of Israel’s Basic Law: The Government, the resignation of the Prime Minister is equivalent to the resignation of the entire government. A new government must be formed; if this proves politically impossible, the Knesset is dissolved and new elections must be held. The process whereby this happens can be complex and lengthy. 

 According to arts. 7 and 8 of the aforementioned Basic Law, President Shimon Peres is required by law, within one week from Olmert’s resignation, to commission another Knesset member to form a government. This will almost certainly be the new head of Kadima, the largest party in the Knesset and Peres’ own party. The new prime ministerial candidate can then take up to 42 days to form a government and obtain a vote of confidence in the Knesset. This entire process can take up to the middle of November, though it may, of course, happen far more quickly.

 Should the candidate for Prime Minister be unable to form a government, the President can make one more attempt and choose another candidate to form a government; the new candidate can take up to 28 days. The President however has another option at this point: He can inform the Speaker of the Knesset (MK Dalia Itzik, Kadima) that, in the President’s opinion, there is no real prospect of anyone being able to form a government that will win the confidence of this Knesset (arts. 9, 11). In that case elections will take place within 90 days from the President’s message to the Speaker of the Knesset.

 Should the President choose a second candidate, and this candidate fails to form a government, elections are held within 90 days after the attempt to form a government fails.

 Conceivably, it may be possible that the President, for partisan or other reasons, is overlooking a candidate who actually can form a government. In that case, after the President informs the Speaker of the Knesset that he will not appoint a second candidate to form a government, or after his second candidate tries and fails to form a government, 61 MKs (an absolute majority of the Knesset) can petition the President to commission Knesset Member X to form a government (art. 10). Such a petition forces the President’s hand; the law requires that Knesset member X be given 14 days to form a government. If the attempt fails, however, elections must be held within 90 days (art.11).

 There is one more law regarding the possible dissolution of the Knesset and holding of elections. According to article 36A (amended) of the Basic Law: The Knesset, the Knesset is dissolved, and elections are held within 90 days, if the budget does not pass within three months after the end of the previous fiscal year — i.e. March 31, 2009 (the fiscal year ends December 31).

 The negotiations over the formation of a new government after Olmert’s resignation will take place at the start of budget season and essentially will be negotiations over the budget. These negotiations will take place under difficult circumstances. During the past two years the Olmert government has been slowly but steadily eroding “budget discipline.” This week, the government will consider a Treasury proposal to cut NIS 9 billion from the 2009 budget, about 1.5% of GDP and closer to 4% of the total budget, needed in order to keep spending within statutory limits and avoid a large deficit. The problem is sure to become worse by the end of the year since, as with most economies, the economic crisis in the United States is slowing the growth of Israel’s economy and tax revenues, creating an even larger deficit.

 Budgetary policy is a matter of sharp contention within the present coalition. The Shas party, in particular, is in favor of relaxing statutory limits on spending and increasing both the deficit and social welfare spending. If its requests are acceded to, it will mean severe setback for the policy of limited expenditure and declining tax rates Israel has implemented since 2003, which led to rapid growth and a sharp rise in job formation. Negotiations to form a new government could break down on the budgetary issue, in which case elections would be held in early 2009. Alternately, a new prime minister could patch together a new coalition, only to have his tenure cut short in March because no agreement on the 2009 budget is reached.

 Finally, it should be noted that Olmert’s resignation does not mean he will be leaving the office of Prime Minister right away. That will happen only after a new government is formed, sometime in October or November. If no government is formed and elections take place, that could mean he stays in office till February or even March.
 

Landmark Law Reforming Judicial Appointments Passes Knesset

 

  

 In the last week of its summer session, the Knesset passed a landmark law reforming the method of appointing judges to the Supreme Court. The previous issue of Liberty Monitor reported that the law had passed the Knesset Constitution and Law Committee.

 The law provides that appointments to the Supreme Court require a special majority of seven members out of the nine-member Judicial Appointments Committee. Given the structure of the committee, this means that the government of the day will have a veto over Supreme Court appointments, and will be able to negotiate deals over appointments with the judiciary. The law is the most significant change in the structure of Israeli government since direct elections to the office of Prime Minister were abandoned in 2003 and probably the most significant affecting the judiciary in since 1953, when the current system of appointments was adopted.

 The structure of the Judicial Appointments Committee, by law, is: Three Supreme Court judges, including the Chief Justice ex officio, two members of the Governing Council of the Israel Bar Association, the Justice Minister and one other minister, and two Knesset members. By longstanding tradition, one member from the Knesset is appointed from the coalition and one from the opposition. This structure means that the government of the day never controls more than one-third of the committee — two ministers and a Knesset member.

 Historically, the judges on the committee vote as a bloc (a law adopted in 2004 made coordinating votes on the committee illegal, but the judges have never taken it seriously). Representatives of the Bar Association, whose livelihood is often dependent on not making the judges angry, generally vote with them. Thus judicial appointments have, in effect, been controlled by the Supreme Court.

 The new law makes it possible for the governing coalition to block appointments to the Supreme Court and to force the judges to negotiate over judicial appointments. It represents a significant shift of power from the judiciary to the elected branches of government. With time, it could lead to a significant change in the ideological composition of the Supreme Court and the entire Israeli judiciary. 

 The new law was sponsored by MK Gideon Saar (Likud), based on a proposal first made by MK Michael Eitan (Likud) five years ago.

 The tenure of Justice Minister Daniel Friedman has been marked by numerous legislative initiatives meant to redress the balance of power between the judiciary and the elected branches of government, now heavily weighted in favor of the former. Many of these initiatives have failed to pass; they are uniformly opposed by the Labor Party, a coalition member and a party whose ideology and interests closely match those of the judicial establishment. The law just passed is the most significant reform of the judiciary achieved to date.
 

 In the last week of its summer session, the Knesset passed a landmark law reforming the method of appointing judges to the Supreme Court. The previous issue of Liberty Monitor reported that the law had passed the Knesset Constitution and Law Committee.

 The law provides that appointments to the Supreme Court require a special majority of seven members out of the nine-member Judicial Appointments Committee. Given the structure of the committee, this means that the government of the day will have a veto over Supreme Court appointments, and will be able to negotiate deals over appointments with the judiciary. The law is the most significant change in the structure of Israeli government since direct elections to the office of Prime Minister were abandoned in 2003 and probably the most significant affecting the judiciary in since 1953, when the current system of appointments was adopted.

 The structure of the Judicial Appointments Committee, by law, is: Three Supreme Court judges, including the Chief Justice ex officio, two members of the Governing Council of the Israel Bar Association, the Justice Minister and one other minister, and two Knesset members. By longstanding tradition, one member from the Knesset is appointed from the coalition and one from the opposition. This structure means that the government of the day never controls more than one-third of the committee — two ministers and a Knesset member.

 Historically, the judges on the committee vote as a bloc (a law adopted in 2004 made coordinating votes on the committee illegal, but the judges have never taken it seriously). Representatives of the Bar Association, whose livelihood is often dependent on not making the judges angry, generally vote with them. Thus judicial appointments have, in effect, been controlled by the Supreme Court.

 The new law makes it possible for the governing coalition to block appointments to the Supreme Court and to force the judges to negotiate over judicial appointments. It represents a significant shift of power from the judiciary to the elected branches of government. With time, it could lead to a significant change in the ideological composition of the Supreme Court and the entire Israeli judiciary. 

 The new law was sponsored by MK Gideon Saar (Likud), based on a proposal first made by MK Michael Eitan (Likud) five years ago.

 The tenure of Justice Minister Daniel Friedman has been marked by numerous legislative initiatives meant to redress the balance of power between the judiciary and the elected branches of government, now heavily weighted in favor of the former. Many of these initiatives have failed to pass; they are uniformly opposed by the Labor Party, a coalition member and a party whose ideology and interests closely match those of the judicial establishment. The law just passed is the most significant reform of the judiciary achieved to date.
 

Commentary: Judicial Appointments Reform: A Hard Place to Stop

 

 By Yitzhak Klein, Director, Israel Policy Center

 Last month’s change in the system of appointing Supreme Court judges, which for the first time gives the government of the day a veto over appointments to the Supreme Court, represents a significant achievement for the cause of Parliamentary democracy in Israel. For the first time since 1953, the Knesset has given elected officials real power in the judicial appointments process.

 Advocates of the new law, particularly its author, MK Gideon Saar, regard the change as a compromise between the old system, which gave the Supreme Court de facto control of appointments to the Judiciary, and those who believe that judges ought to be appointed by the people’s elected representatives. Saar, once an employee of the State Prosecution who worked closely with now-Supreme Court Justice Edna Arbel, may have used his influence to get the judges to accept the new law without visible opposition. 

 However, the law is likely to prove an unstable, temporary compromise. It is likely to lead either to a retreat, back to an appointments system completely controlled by the judiciary, or forward, to a system in which the control of judicial appointments is vested in the Executive and Legislative branches.

 One important source of the crisis of the Israeli judiciary is its political hyperactivism. The Supreme Court has become the decision-maker of last resort in critical issues of economic, security and social policy, overriding the Knesset and the government. Since the judges appoint themselves, their considerable power rests on no popular mandate; they have been likened to an unelected superlegislature, able to override the popular will as represented by elections. Appointments to the bench are thus inherently controversial. Hitherto, judges have appointed new judges to the bench who agree both with the political orientation of the bench and with its activist role, questionable though the latter may be from a democratic perspective.

 The new law gives elected officials an important handle on the judicial selection process and, consequently, on the role the judiciary will play in public life. It guarantees, however, that the public will continue to perceive the Bench as controversial and politicized. The new law will turn every round of judicial appointments into a political circus, with government and the judges jockeying for public opinion and concluding shady deals behind closed doors. The judges will appear to the public as just another political interest group, bargaining and maneuvering to preserve their power. Nothing could be more corrosive of the majesty of the law and the prestige of the judiciary.

 While the new law moves Israel in the direction of democracy, toward legislative and executive appointment of the judiciary, it does so in a manner that is sure to prove controversial and counterproductive. It seems likely that the new law will not survive many rounds of judicial appointments before it too becomes the target of public disgust and calls for reform. At that point the move to a full system of appointment by the elected branches of government is likely to seem more attractive
 

Government Authorizes Fingerprinting All Citizens

Jerusalem, August 3 — The government approved draft legislation to set up a databank of the fingerprints of all citizens in the country. Fingerprints would be made accessible to law enforcement authorities upon presentment of a court order. This draft law, if passed by the Knesset, would represent a further government intrusion upon individual privacy, after the law passed last year that provides for all phone conversation in the country to be recorded and stored in a databank, to enable them to be accessed by court order when desired by police and prosecutors. While the law provides for fingerprints (as well as conversations) to be kept confidential, the mere existence of these databases makes it possible for unauthorized use to be made of them. Sufficiently sophisticated hackers — perhaps including law enforcement officials with access to the databases — could access the information held within them, or perhaps even change the information to exonerate criminals, incriminate the innocent, or otherwise take advantage of innocent citizens.

Supreme Court Refuses to Suspend Olmert - for now

Jerusalem, August 4 — Israel’s Supreme Court dismissed a petition by attorney and journalist Yoav Yitzhak to suspend Prime Minister Olmert from office for the purpose of completing his police interrogation.

 Olmert has been interrogated by the police in Friday morning sessions of an hour or two every few weeks. Police have complained that the sessions are too short and that Olmert drags out questioning, spars verbally with interrogators, and generally acts in a manner meant to frustrate the interrogation. The Prime Minister’s spokesmen claim that Olmert is cooperating and that the time he has budgeted for police interrogations are all that a busy Prime Minister can spare.

 Acting in the wake of police complaints, Atty Yitzhak petitioned the Supreme Court to order Olmert temporarily suspended from office so that several days can be devoted to intense interrogation. The Supreme Court rejected his plea.

 Commenting on Yitzhak’s plea, Attorney General Mazuz said last week that he had no intention of suspending a serving Prime Minister, a decision that was essentially political in nature. The Court upheld Mazuz’ view, stating that the suspension of a serving Prime Minister must be regarded as a highly exceptional act. If Olmert exhibited a pattern of obstruction of justice, however, the court ruled that the Attorney General could suspend him. The Court confirmed that the Attorney General had the authority to suspend Olmert if he should see fit.

 The burden of the court’s decision is to confirm that the Attorney General has the authority to suspend the Prime Minister for cause, but to refuse to interfere with the Attorney General’s discretion in exercising or not exercising that authority. Refusal to interfere with the Attorney general’s exercise of his authority upholds a pattern the Court has adopted in the past.

 See also next news item.

Olmert Threatens to Resign if Indicted

 

Jerusalem, August 3 — In response to rumors that the police will soon recommend indicting him on some charges related to the ongoing investigations against him, Prime Minister Olmert threatened to resign if indicted.

 “Threatened” rather than offered to resign is the right term because Olmert’s resignation at this juncture would have serious political repercussions, almost certainly precipitating new elections. Olmert’s party, Kadima, is in the throes of a primary election to replace him. His sudden resignation would leave the Knesset’s largest party without an agreed candidate for Prime Minister and almost certainly make the formation of a new government impossible.

 Olmert’s threat to resign is widely viewed as a veiled bid to ensure that police and prosecutors do not hasten to indict him in the next six weeks until the Kadima primaries.

 

 
 

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