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Israel’s constitutional crisis has been postponed, not resolved

The High Court of Justice effectively seized control of another branch of government, in flagrant violation of legislation that the court itself deems constitutional. Once the coronavirus crisis ends, a full-blown court-Knesset war will be unavoidable.

Israeli President Reuven Rivlin addresses a largely empty Knesset for the swearing-in of the 23rd Knesset. Present is Israeli Prime Minister Benjamin Netanyahu, Blue and White leader Benny Gantz, Knesset speaker Yuli Edelstein and Supreme Court president Esther Hayut on March 16, 2020. Photo by Haim Zach/GPO.
Israeli President Reuven Rivlin addresses a largely empty Knesset for the swearing-in of the 23rd Knesset. Present is Israeli Prime Minister Benjamin Netanyahu, Blue and White leader Benny Gantz, Knesset speaker Yuli Edelstein and Supreme Court president Esther Hayut on March 16, 2020. Photo by Haim Zach/GPO.
Evelyn Gordon

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

Granted, the ruling was hypocritical; the court never cared about majority rights when rightists were the majority. Moreover, the new majority wanted the speakership primarily to pass ad hominem legislation barring Netanyahu from forming a new government, and I obviously don’t approve of prioritizing anti-Netanyahu legislation over both ironclad parliamentary precedent and fighting a pandemic. But elections have consequences. And hounding Netanyahu is exactly—in fact, almost exclusively—what this majority was elected to do.

Nevertheless, judicial intervention in the legislature’s internal affairs obviously sets a troubling precedent. Thus Edelstein, who has consistently fought executive branch encroachments on parliament (he once even threatened a parliamentary boycott of the Independence Day ceremony if Netanyahu usurped the Knesset’s leading role), considered it crucial to send a strong message against judicial encroachment as well.

Displaying the guts and smarts he honed against the Soviet Union, the former Prisoner of Zion came up with a brilliant solution: He resigned. He thereby upheld both parliament’s independence and the court’s ruling.

Resigning ensured that the substance of the court’s ruling would be obeyed: A new speaker would be elected promptly. But the vote would stem from standard parliamentary procedure—that’s simply what happens when a speaker resigns—rather than court order. And it would follow the standard parliamentary timetable—48 hours after the resignation was submitted, meaning March 27 at the earliest (and more likely March 30, the first regularly scheduled session after the resignation took effect)—rather than the court’s March 25 deadline.

Yet that wasn’t good enough for Israel’s imperial judiciary. In an unprecedented intervention into parliament’s affairs, the court adopted an unconstitutional “solution” proposed by Yinon: It appointed a “temporary speaker” and ordered him to hold a vote on a permanent speaker by March 25.

It’s impossible to overstate how outrageous this is. First, the ruling flagrantly violated the Basic Law: The Knesset, which the court itself deems constitutional legislation. This law mandates a single Knesset speaker, but the court created two speakers serving simultaneously: Edelstein, who by law retained full powers until his resignation took effect, and the temporary speaker, whose authority would be limited to holding a vote on a new speaker.

Moreover, the Basic Law says the Knesset should elect its own speaker. But the justices appointed the “temporary speaker,” Amir Peretz, themselves.

Finally, implementation of court orders is often delayed for various reasons, and the court routinely grants extensions, often lengthy ones. Yet in this case, rather than accept a trivial delay of two to five days, the justices effectively seized control of another branch of government.

Anyone who cares about democracy should be appalled by this. And the fact that leftists overwhelmingly supported it shows that their professed concern for “democracy” is mere camouflage; what they want is a judicial dictatorship.

It’s unclear what would have happened next had Gantz not correctly concluded that Israel couldn’t afford a full-blown constitutional crisis while a pandemic raged and taken swift action to defer it: He ditched his bloc’s former candidate for speaker, nominated himself for the job, and announced that he would join a unity government under Netanyahu. This ensured that the speakership will remain in the government’s hands. It also temporarily precluded an all-out court-Knesset war, since his condition for unity was maintaining the legal status quo—a price Netanyahu agreed to pay because he, too, considers the coronavirus top priority right now.

But if rightists were angry at the High Court before, they’re incandescent now. Whenever the next election is, this will be a voting issue. If the right wins, it will pass legislation to restrain the court. And since the court won’t let its excessive power be curbed without a fight, it will undoubtedly retaliate by declaring the legislation unconstitutional.

In other words, the constitutional crisis has merely been postponed, not resolved. And it’s likely to get very ugly before it’s over.

Evelyn Gordon is a journalist and commentator living in Israel.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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