What Lapid’s gov’t can and can’t do—and the controversy over who decides

The limitations placed on transitional governments are not based in law but rather based on the personal—and biased—views of an unelected legal fraternity, experts say.

By David Isaac, JNS

While the maneuverability of Israel’s so-called caretaker governments has been limited in the past, observers argue this is not anchored in law.

The issue has garnered much attention over the past few years of political crisis, during which Israel has had several transitional governments. The country has held four national elections since 2019, with another upcoming on November 1.

While supporting in principle limitations on transitional governments, Meir Buchnik, deputy director of the Kohelet Policy Forum, a Jerusalem-based think tank, objects to the way they are implemented in practice.

“When limitations are placed on government decisions, it is not done according to any law but rather based on the personal views—the hearts and minds—of legal advisers, who have no authority according to the law to impose such limitations,” Buchnik told JNS.

He noted that the term “transitional government” does not appear in any Israeli law, although a term that translates from Hebrew into English as an “exiting government” does appear in Basic Law: The Government.

But that law says nothing about limitations, raising the question: from where do unelected legal advisers derive their authority to dictate the actions of interim governments?

According to Buchnik, the notion originates in previous Supreme Court decisions that “suggested that a government that no longer enjoys the support of the Knesset [parliament] should not be able to make decisions that limit the flexibility of the next government.”

However, these court decisions were limited in scope and for the most part, urged caretaker governments to avoid making major policy decisions, he said. But over time, he continued, the State Attorney and the Supreme Court have expanded this interpretation so that interim governments can only make “necessary” decisions.

“They’re basically prohibiting governments from taking actions that they [the legal fraternity] don’t consider immediately necessary—but the question of what is necessary and what is not necessary is open to interpretation,” he said.

‘The public should know’

During the tenure of a transitional government, legal advisers could be making a slew of decisions to greenlight or neuter the activities of ministry officials, said Buchnik.

He attributed this authority specifically to a 1995 Supreme Court ruling arguing that “the opinions of the attorney general and its legal advisers are binding.” The result, he said, is that ministers rarely appeal legal opinions “because they know the chances they’ll be overturned are slim.”

“There are very few cases where the court went with the minister against the attorney general. Maybe two or three,” he said.

For Kohelet, which aims “to strengthen representative democracy,” those limitations on interim governments are imposed unilaterally and often without public knowledge, adding to the problem.

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Accordingly, the think tank in 2019 submitted a freedom of information request requiring the attorney general’s office to reveal all legal opinions on the matter.

“We said to them that if you’re making very big decisions on what the government can or can’t do, then the public should know the sort of considerations that went into them,” said Buchnik.

The Jerusalem District Court eventually ordered the attorney general’s office to comply with Kohelet’s request, but “to this day, they’re still fighting us on sharing that information,” said Buchnik.

According to Kohelet, the opinions that have been handed over to it show no discernible logic or orderly reasoning.

Buchnik believes that limitations on caretaker governments should be decided by parliamentarians and hashed out through debate.

“If the legislature would put into law criteria detailing what should not take place during a transitional government, that would be okay,” he said.

Politically biased court

Michael Kleiner, a practicing attorney, former Knesset member and currently president of the Likud Court, the Likud Party’s judicial organ, agrees that limitations on interim governments are desirable, but says the current situation is untenable.

This, he said, is because it places all the power in the hands of Israel’s legal establishment, which is politically biased.

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“People cannot separate themselves from their political opinions,” he said.

Kleiner provided two examples which, taken together, he said, demonstrate this partisanship.

In 1999, during a transitional government led by then-Prime Minister Benjamin Netanyahu, then-Public Security Minister Uzi Landau wanted to close Orient House, which at the time served as the PLO headquarters in Jerusalem and had become an epicenter for planning hostile activities against Israel.

“The Supreme Court intervened and said, ‘You can’t do this before the election. You have to wait until the next government,’” said Kleiner.

By contrast, in January 2001, then-Prime Minister Ehud Barak, who was leading an interim government, met in Sinai with former PLO chief Yasser Arafat.

“The High Court refused to issue a restraining order against the convening of the summit, or even against Israeli proposals for new concessions,” said Kleiner.

Comparing the two cases, Kleiner noted that it would have been a simple move for any government to reopen the Orient House, but much harder to reverse “dangerous concessions” to the Palestinians that, effectively, would have “been a fait accompli.”

Given the vagaries and vagueness of the processes that contribute to limiting interim government decisions, Kleiner said it is impossible to predict what the current caretaker government of Prime Minister Yair Lapid will try—or even be able—to do.