These difficult times present us with a rare opportunity to amend the shattered rules of Israeli politics. One of the basic principles of democracy is that you cannot change the rules mid-game. It is clear to all of us that in sports it is unfair – and even damaging - when you change the rules of the game in the middle of a match or in the middle of a season.
If a player on a rival team gets a yellow card in soccer, it cannot suddenly be decided that anyone getting a yellow card is sent off the pitch. It is not the same in politics: Over the years, this principle has been eroded in the Israeli Knesset. Those who had the majority, passed legislation based on the rules of the game, down to the level of "personal-tailored legislation". The concern was whether it was good for us now, and not whether these are the right rules for the State of Israel.
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This trend has reached new heights in recent days. Likud proposed amending Basic Law: The Knesset can allow parliamentarians to defect to another party without any sanctions being brought against them. Some might dub it the so-called "Omer Yankelevich law" (after the MK who was said to be on the cusp of defecting from Blue and White). Blue and White suggested amending Basic Law: The Government so that anyone indicted for criminal acts would not be allowed to serve as prime minister. "The Netanyahu Law".
Likud once against started talking about passing the "French Law" to give immunity from prosecution to the prime minister, after the indictment had already been filed. These three initiatives are personal legislation that would change the rules in the middle of the game. None of them would have been able to secure anything other a small, momentary majority. Such measures are foul both because of the constitutional implications and because of their harm to the State of Israel and its citizens.
Currently there is a short window of opportunity because it is still not entirely clear which side will manage to make good on its threat. We are behind what is known in the legal-philosophy world as "the veil of ignorance". Both political sides have something to lose. They both face uncertainty over the ability to make good on their mutual threats. That is why there is a chance to get them to agree on the rules of the game. I am not suggesting that anyone in either of the blocs unilaterally give up on their initiative, that won't happen – unless there is agreement with the other bloc. If we must go to a fourth election, the best way to do so would be after stabilizing the rules of the game.
The idea is simple: Pass a law in the spirit of the last amendment to the US Constitution (the 27th Amendment) which states that "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened". The bill proposed here would state that no law that changes the basic rules of the political game in Israel would come into effect before the next election.
The logic is that such a law, and those who pass it, would be put to the test by the voting public before the law comes into effect. The "rules of the game" would include, among other things, laws relating to how elections are held (installation of cameras, or raising the electoral threshold, for example), resignations from factions, ousting and disqualification of MKs, immunity for MKS, ministers and the prime minister.
If Likud and Blue and White join together, it will be possible to mobilize other parties to secure a large majority for this law, giving it broad public legitimacy, and it would be wise to safeguard the law from being overturned through necessitating a special majority of 75-80 MKs. This safeguard would assure the sides that their opponents will not break the agreement and overturn the law with a regular majority the moment it has a fleeting, political opportunity (for example after the next elections). The first, necessary step is to quickly reach a highly-publicized agreement between the leaders of the two largest parties that they will together advance such legislation.
Even if the center-left believes that it currently has an opportunistic majority to amend the Basic Law: The Government, one would hope that Blue and White, which flew the flag of democracy and rule of law, would understand that it is best for it and the State of Israel in the long term to set the rules of the game. Currently, as long as Likud fears that a law could pass that would bar Netanyahu, it may agree to do what it has not agreed to in the past, and explore the option of the "French Law" which comes into immediate effect.
The public needs to make it clear to its elected officials that any attempt by any one of the sides to exploit its momentary majority to change the rules mid-game will damage the legitimacy of Israeli democracy, as well as the side that carries it out.
The situation that has developed after the third election only reinforces the belief that it is correct to set the basic rules of the democratic game, at the first stage, by passing a Basic Law: The Judiciary, and further down the line through a constitution with a broad consensus. The constitution would define the powers of each branch of government, it would be reinforced against personal, opportunistic amendments, and would create long-term public legitimacy for the rules of the game, as well as launching a process of healing the rifts in Israeli society, which only deepened further this week.
