On the Trinity: On an Indicted Prime Minister, a Deputy-Prime Minister and an Alternative Prime Minister

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We are currently experiencing a constitutional crisis of historic proportions, unprecedented even by comparative standards. At the heart of the public agenda lies the question of whether the Supreme Court, sitting as the High Court of Justice (Bagatz), should rule that Member of Knesset Benjamin Netanyahu is disqualified from serving as Prime Minister, despite what appears to be the support of a substantial parliamentary majority—over seventy Members of Knesset—who wish to see him form the next government. The petitions before the Court request that it intervene in the discretion exercised by those Members of Knesset who intend to recommend to the President that Netanyahu be tasked with forming a government. Alternatively, the petitions ask the Court to declare that the President must exercise discretion and decline the request of the parliamentary majority to assign Netanyahu the mandate. They also call upon legal advisors in relevant institutions to instruct officials that the law requires them to refrain from appointing Netanyahu as Prime Minister.

This constitutional dilemma could have been avoided had Prime Minister Netanyahu followed the example set by his predecessors who faced criminal indictments and acted, as would have been appropriate, by resigning in light of the serious charges brought against him.

In a special eleven-justice panel, and under the watchful eye of the media, the Court heard arguments on the matter. Both sides claimed to speak in the name of democracy and the rule of law. Each warned that the failure to adopt their respective positions would mark the end of Israeli democracy. Yet amid the intensifying rhetoric, there are signs of emerging consensus under the shadow of the Court. Even Prime Minister Netanyahu agreed to a conflict-of-interest arrangement, which precludes him from participating in the appointment of key judicial and legal officials, including the Attorney General and judges.

The very fact of judicial deliberation enables the beginning of a process of societal reconciliation. It allows adversaries to voice their grievances and be heard by the Court. It enables a kind of constitutional seminar—a substantive national conversation about the nature of Israeli democracy. Regardless of the outcome, Israeli society is sending both an internal and external message: it does not take for granted the idea that a Prime Minister under indictment may continue in office. The proceeding reflects a collective commitment to a democracy that is not merely based on majority rule, but also bound by values and foundational principles.

Debate over the interpretation of the Basic Laws is legitimate. The Court is the authorized interpreter of the law, and the decision rests in its hands. As I have argued in my article “Is Judicial Removal of a Prime Minister in Israel Constitutional?”, the Knesset, in its capacity as the constituent authority, chose to distinguish between the legal regime applicable to ministers and that applicable to the Prime Minister when facing criminal indictments. Indeed, the Basic Laws' treatment of the Prime Minister reflects a system that is not a pure parliamentary model, but one with quasi-presidential characteristics. Basic Law: The Government provides that in a range of situations—whether voluntary or involuntary—the departure of a Prime Minister results in the fall of the government. These include death, permanent incapacity, resignation, or removal from office. This is a structural decision embedded in the Basic Law, not limited to cases involving criminal liability.

The underlying assumption of the Basic Law is that the identity of the Prime Minister is of such systemic importance that any change in that position requires a renewed test of confidence by the Knesset. This legal principle is supported by historical experience. For example, Shimon Peres did not enjoy the same public support that Yitzhak Rabin had commanded. The same was true of Tzipi Livni, who replaced Ehud Olmert as head of the Kadima party.

Professor Barak Medina, in a post on this blog, has proposed applying the Deri doctrine to the discretion exercised by Members of Knesset when recommending to the President that a specific Knesset member be tasked with forming a government—or even when voting confidence in a government. However, judicial intervention in the discretion of Knesset members on matters of confidence or no-confidence in a government is fundamentally different from judicial review of the Prime Minister's discretion in dismissing a minister. The Prime Minister heads the executive branch in Israel. In Deri-Pinhasi, the Court recognized the legitimacy of political considerations in ministerial appointments and dismissals but prohibited the Prime Minister from acting with extreme unreasonableness. The Court explicitly held that, in the context of a duty to dismiss a minister facing criminal indictment, "the political function gives way to the administrative function."

The same cannot be said of Members of Knesset when they express confidence or lack thereof in a government. These are not instances where MKs act in an intra-parliamentary administrative capacity, nor do they sit in quasi-judicial roles as in deliberations on parliamentary immunity or ethics. Their considerations are purely political. The reasonableness doctrine does not apply. There is no legal expectation that a particular MK or party caucus must act “reasonably” in voting for or against a government in accordance with the preferences of an enlightened public. Courts do not evaluate whether all relevant considerations were weighed and balanced. Consequently, Deri cannot apply to such situations.

Furthermore, applying the standard of reasonableness to a party’s support or opposition to a government would effectively bring an end to our democratic regime. Such interference would strike at the very core of parliamentary democracy. Stripping parliament of its prerogative to confer or deny confidence in the government undermines the heart of the system. Comparative experience from parliamentary democracies similarly illustrates the dangers of allowing unelected institutions to intervene in the core of trust relations between parliament and the executive.

The Case of the Acting Prime Minister

What, then, of the Acting Prime Minister? Basic Law: The Government does not extend to the Acting Prime Minister the special provisions that apply to the Prime Minister, beyond requiring that they be a sitting Member of Knesset. The Knesset did not debate the need for special protections for the Acting Prime Minister when enacting such protections for an indicted Prime Minister. The Acting Prime Minister may temporarily replace the Prime Minister in cases of short-term incapacity. They may also convene and chair cabinet meetings in the Prime Minister’s absence from the country. However, if the Prime Minister’s incapacity exceeds one hundred days, the government falls. The Acting Prime Minister does not possess the exclusive authority to dissolve the Knesset—a power reserved for the Prime Minister alone.

The logic of Deri-Pinhasi, therefore, should apply to the Acting Prime Minister, who is simply one of the ministers. In other words, when a Prime Minister steps aside under a rotation agreement, they may not continue to serve in the government—either as a minister or as Acting Prime Minister—if under indictment for serious criminal offenses.

The Legal Status of the Alternate Prime Minister

What, then, is the status of the Alternate Prime Minister? Was this institution created to shield an indicted Prime Minister from the application of Deri-Pinhasi? Does it resemble the position of Acting Prime Minister, or is it equivalent to the office of the Prime Minister itself?

The coalition agreement of April 2020 between Likud and Blue and White introduced a new constitutional construct: the "Alternate Prime Minister." Relying on the coalition agreement and proposed amendments to Basic Law: The Government, one can identify several key features of this new office:

1. The Alternate Prime Minister is the exclusive appointer of ministers from their political bloc. Dismissal of ministers from that bloc requires their consent. This effectively redefines the principle of ministerial responsibility to the Prime Minister.

2. Knesset confidence is granted to both heads of government simultaneously. The resignation of one does not require the swearing-in of the other. The two are allowed to alternate positions either at the Prime Minister’s discretion or on a date stipulated in the coalition agreement. This stands in contrast to previous rotation agreements, where the incoming Prime Minister had to receive a renewed vote of confidence.

3. Both Prime Ministers take a special oath of office that applies throughout the government's term.

4. The Alternate Prime Minister holds responsibility over ministries led by their bloc. Their consent is required for any structural changes affecting those ministries.

5. The Alternate Prime Minister sits in all decision-making forums alongside the Prime Minister.

6. They enjoy the full trappings of executive authority, including an official residence, security detail, and budget.

7. No item may be placed on the government’s agenda without the agreement of both Prime Ministers.

8. Dissolution of the Knesset requires the Alternate Prime Minister’s consent—unlike the legal framework governing the Acting Prime Minister.

9. All special provisions that apply to a Prime Minister facing criminal charges also apply to the Alternate Prime Minister. These protections do not apply to the Acting Prime Minister.

   
   

In light of these features, the Alternate Prime Minister appears to function not as a deputy or placeholder, but as a full constitutional counterpart to the Prime Minister. As such, the doctrines and protections applicable to the Prime Minister must logically apply to the Alternate Prime Minister as well. If the Deri-Pinhasi standard cannot apply to the Prime Minister due to constitutional design, its application to the Alternate Prime Minister—who enjoys parallel authority—raises complex and as yet unresolved constitutional questions.

These arrangements necessitate amendments to Basic Law: The Government. This raises the question of whether the application of the Basic Law’s special provisions—particularly those concerning criminal liability—to the Alternate Prime Minister amounts to personalized and retroactive legislation. The answer to this question depends largely on how one interprets the purpose of the coalition agreement and the constitutional amendments that followed.

If the arrangement is understood as analogous to previous models of Prime Minister and Acting Prime Minister that have existed in Israel, then this may be seen as an attempt to shield an individual—who would otherwise serve as Acting Prime Minister—from the application of the Deri-Pinhasi doctrine. Indeed, some of the legal counsel representing the respondents in related petitions have argued that, in broad terms, the coalition agreement mirrors earlier rotation-based governments.

However, if the Alternate Prime Minister is considered a new constitutional institution—effectively functioning as a co-equal Prime Minister—then the legal standards applicable to the Prime Minister in criminal matters should apply equally to the Alternate Prime Minister. In practice, nearly every significant constitutional power of the Prime Minister is now subject to the consent of the Alternate Prime Minister. This creates a dual-executive arrangement with far-reaching implications.

This case raises novel constitutional questions about the joint governance of state affairs from the very first day of the government's term—questions that go beyond the scope of this essay. If the Court affirms the constitutional validity of this dual-bloc arrangement, it may result in two de facto Prime Ministers serving simultaneously for the full duration of the coalition’s term.

Suggested Citation:

On the Trinity: On an Indicted Prime Minister, a Deputy-Prime Minister and an Alternative Prime Minister, ICON-S-IL Blog, May 5, 2020.