How the new Knesset can begin changing Israel before a coalition forms - opinion

The election exit polls indicate that a decisive majority of Israeli voters have rejected the continuation of Prime Minister Benjamin Netanyahu's government. Between 70 and 73 seats appear to have gone to parties outside Netanyahu's right-wing and religious bloc.But that majority includes 17–18 seats won by the two Arab parties, which most of the Jewish parties opposing Netanyahu have refused to recognize as potential political partners.

That refusal could become Netanyahu's political lifeline. It does not have to be.There is an important constitutional fact that should now become central to Israel's political debate: A new government does not have to be formed before the newly elected Knesset can begin changing the direction of the country.

The legal sequence is straightforward.A step-by-step sequenceFirst, the new Knesset convenes. Its 120 members declare their allegiance to the State of Israel and its laws. The outgoing Netanyahu government continues to serve as a caretaker government until a new government is sworn in. But the new Knesset immediately possesses its constitutional authority as Israel's legislature.Second, the new Knesset can elect a new speaker. This does not require the formation of a government or a coalition agreement.

It requires a parliamentary majority in the relevant vote. If the parties opposing Netanyahu agree on a candidate, they can elect a new speaker with the support of the Arab parties. There is no legal prohibition against such cooperation.

This is not merely a theoretical possibility. In March 2020, the Supreme Court intervened when then-Knesset speaker Yuli Edelstein attempted to prevent a vote on replacing him. The Court affirmed that the parliamentary majority must be allowed to exercise its authority to elect a speaker.Third, the Knesset establishes its parliamentary machinery. An Arrangements Committee is formed to organize parliamentary work. Temporary committees can be established, and the Knesset can create the committee framework necessary to advance legislation.

This process can take place before a new government is formed.Fourth, the new parliamentary majority can begin legislating. Members of Knesset can introduce private members' bills, and the parliamentary majority can advance them through the required legislative stages. Private members' bills ordinarily require a preliminary reading, followed by three readings and committee deliberations. Procedural waiting periods may apply, although the Knesset's rules provide mechanisms for accelerating legislation in certain circumstances.

The first priority should be legislation ensuring the establishment of an independent state commission of inquiry into the failures that led to October 7. The Knesset should also begin the process of reversing legislation that weakened Israel's judiciary and undermined democratic checks and balances.Each legislative proposal would require the applicable majority, and some changes to Basic Laws may require an absolute majority of 61 or other special procedures.

But none of these legislative processes is constitutionally dependent on the formation of a new government.Fifth, negotiations over forming the next government continue in parallel. The president consults the parliamentary factions and assigns a member of Knesset the task of forming a government. That process can take weeks or longer. Throughout that period, Netanyahu remains prime minister of the outgoing government, but he does not automatically control the newly elected Knesset.This distinction is crucial.Gadi Eisenkot does not need to persuade Avigdor Liberman, Naftali Bennett, Yair Lapid, Yair Golan, Mansour Abbas and the other Arab representatives to agree on a governing coalition before they can cooperate in parliament.They do not need to agree on the Israeli-Palestinian conflict, the future of the settlements, security policy or the composition of the next government.

They need only agree that the voters have given them an opportunity to begin repairing Israel's democratic institutions.Nor would parliamentary cooperation with the Arab parties require their participation in a future government. Their votes in the Knesset are as legitimate as those of every other elected representative.

The immediate challenge is therefore political, not constitutional. Can the parties opposing Netanyahu agree to exercise the parliamentary majority that the voters have apparently given them?Liberman and Bennett may oppose forming a government dependent on Arab parliamentary support. But that is a political position, not a legal barrier to electing a new speaker or passing legislation together.

The new Knesset could begin its work while negotiations over the next government continue. A new speaker could be elected. Committees could be established. Legislation could be introduced and advanced. The process of restoring democratic accountability could begin.None of this would automatically remove Netanyahu from the prime minister's office. That requires the formation of a new government or another constitutionally prescribed process.

But it would mean that Netanyahu could no longer assume that his caretaker government also commands the legislature.

The central question is whether the leaders of the anti-Netanyahu parties will allow their disagreements over the next government to prevent them from using their majority in the new Knesset.Israel cannot afford another prolonged period of political paralysis while its democratic institutions remain damaged and the failures of October 7 remain without a full, independent state investigation.

The voters have apparently created the possibility of change. The law provides the means to begin.There is no reason to wait for a new government before taking the first steps.

The Knesset can begin changing Israel before Israel has a new prime minister.

The voters have spoken. Now their elected representatives must decide whether they are prepared to act.