A colleague of mine asked me a few days ago: “how long does it take to form a government in Israel?” This is not a simple question, I answered, particularly considering that the most recent elections, which took place a week ago on September 17, 2019, occurred a little over five months after the previous April 9, 2019, elections.
Israel maintains a parliamentary system of government where, in principle, the party with the greatest representation in the parliament may form the government. In this situation, the prime minister would be the leader of the winning party. Historically, however, no single party has ever won a clear majority, 61 of the 120 available seats, in the Knesset (Israel’s parliament). Therefore, Israeli governments usually consist of coalitions composed of parliamentary groups entering political alliances guaranteed under coalition agreements.
I have previously blogged about the making of a coalition government in Israel. As I noted a few years back, the winner of the Israeli elections is not necessarily going to head the upcoming government. Indeed, yesterday, on September 25, 2019, the president of Israel assigned the task of forming a coalition government to the Likud party headed by Prime Minister Binyamin Netanyahu. Likud got the second-most votes in the September 17, 2019, elections, with the Blue and White party, headed by Benny Gantz, winning the most votes. Neither party won enough votes, however, as Likud won 32, compared with the 33 seats won by Blue and White, both figures far from the minimum of 61 required for a majority.
Procedures for Forming a Government
Basic Law: The Government authorizes the president of the state to, within seven days from the publication of the election results, after consultation with the representatives of the lists of candidates, assign the task of forming a government to a Knesset member (KM) who has agreed to do so. (Id. § 7.) The designated KM has twenty-eight days to fulfill this task, a period that may be further extended by up to fourteen days—that is, a maximum total of forty-two days (referred to as the “initial total period”). (Id. § 8.)
If the KM has been unsuccessful in forming a government within the initial total period, or if the Knesset has given the government a vote of no confidence, the president assigns the task of forming a government to another KM who has informed the president of his/her willingness to assume the task. The president may alternatively inform the speaker of the Knesset that he/she sees no possibility of forming a government under the circumstances. The assignment to another KM or the notice to the speaker must be made within three days from (a) the day on which the initial total period ended, (b) the day on which the assigned KM announced that he/she was unable to form a government, or (c) the day on which a request to express confidence in the government was rejected. The second KM assigned by the president to form a government has twenty-eight days to accomplish the task. (Id. § 9.)
The unsuccessful attempt to form a government by the second KM assigned, notice by the president to the Knesset speaker that there is no possibility of forming a government, or vote of no confidence in the proposed government enables a majority of the KMs to, within twenty-one days of the relevant date, request in writing that the president assign the task to another KM. The president must then assign the task of forming a government to the requested KM within two days. The assigned KM has fourteen days to fulfill the task. (Id. § 10.) Unsuccessful efforts to form a government or a vote of no confidence in the proposed government results in the holding of new elections. (Id. § 11.)
Scope of Discretion Granted to the President in Assigning the Formation of the Government
Although Basic Law: The Government authorizes the president to assign the task of government formation to a KM as described above, the Basic Law does not provide any criteria by which the president’s selection of the KM should be made. This lack of guidance has been interpreted by an Israeli expert as
[l]eaving considerable room for the President’s own discretion. At the same time, it is clear that the rationale for consulting with representatives of various factions is to help the President identify who has the best chances of forming a government, and charge this individual with the task of doing so. This stems from an approach which seeks to establish a government as quickly as possible, so as to reduce the time period during which the state is in a type of political paralysis. Other factors, such as which faction garnered the highest number of Knesset seats, or which of the candidates for prime minister was given the highest number of “recommendations” by other faction leaders, also influence the President’s decision making, but are not binding.
Limits on the President’s Power to Reassign Formation of the Government to another KM
The president does not have the power to assign the formation of a government to any member if the Knesset has passed legislation requiring its dissolution. This is based on Basic Law: The Knesset, which provides that the term of the Knesset is four years from the date of its election. (Id. § 8). The Knesset may, by a law approved by a majority of its members (61 of the 120 members), decide to dissolve itself before the end of its term of office. (Id. § 34.) The Basic Law provides that a law on the dissolution of the Knesset must include a provision on the date of new elections. This date should not be later than five months from the date of adoption of the law. (Id. § 35.)
Having failed to form a coalition government after an extension granted by the president, on May 29, 2019, a KM from the Likud party submitted a bill, which gained the support of majority of Knesset members, for dissolution of 21st Knesset before the end of its term of office. The Knesset had been elected on April 9, 2019, and sworn in on April 30. The Twenty-First Knesset Dispersion Law, 5779-2019 provided for September 17, 2019, as the date of elections for the 22ndd Knesset.
Chances of Forming a Coalition Government Following the President’s Assignment
Following the assignment of forming of a coalition government, the Likud candidate, PM Netanyahu, has 28 days from September 25, 2019, to get the support of at least 61 KMs for a government under his leadership. Israeli press has posted a copy of an agreement signed on September 19, 2019, by the Likud party with four additional parties to jointly conduct coalition negotiations and enter into a coalition government. The agreement also determines that the parties’ candidate for prime minister is Binyamin Netanyahu. The total number of parliamentary seats held by this block of parties is 55, short of the 61 votes required to form a coalition government. Likud’s commitment to negotiate as a block may pose a challenge for gaining the support of the winning party in the recent elections, or of other parties not signatories to the block agreement, for a government under the conditions enumerated in that agreement.