(March 26, 2020 / JNS) It really is all about the Benjamins. Pending any last-minute crisis, Israel may finally have an emergency unity government after a yearlong political deadlock and three elections. The new government—the precise terms of which have yet to be determined—will see Israeli Prime Minister Benjamin Netanyahu continue in his role for another year-and-a-half, while Blue and White Party leader Benny Gantz will become defense or foreign minister.
But first, Gantz will temporarily become the new Speaker of the Knesset.
Which brings us back to another groundbreaking occurrence from earlier this week.
Former Knesset Speaker Yuli Edelstein of the Likud Party shocked Israel’s political system when he announced that he was resigning from the position due to a threat by the Supreme Court to hold him in contempt for disobeying an order to call for a vote to replace himself as speaker by Wednesday afternoon. Israel’s right accuses the Supreme Court of having a leftist political agenda and overreaching its authority, while Israel’s left accuses Edelstein and Likud of trampling the law.
Is Israel’s judiciary overstepping its authority? Or is the legislature undermining the judiciary? Where the boundaries of the judicial branch end and where the boundaries of the legislative branch begin is clearly an issue that will require further discussion, regardless of whether or not a new government is sworn in.
“The law is very clear. The inner management of the Knesset is to be determined by the Knesset.”
Moshe Koppel, founder of the Jerusalem-based Kohelet Policy Forum, told JNS, “Edelstein believes, correctly, that the court exceeded its authority in interfering in the affairs of the legislature. Consequently, rather than calling a vote on election of a new chairman in accordance with the court’s unprecedented ruling, he tendered his resignation in protest. This is the only course of action he could have taken that would prevent a constitutional crisis.”
At the foundation of this issue is the intent by the Blue and White, Joint Arab List and Israel Beiteinu parties to remove Netanyahu from power, as he is under indictment in three separate cases.
The struggle between the left and right to control the parliamentary agenda in this case landed on the desk of Knesset Speaker Edelstein. Whoever controls this office determines the Knesset’s agenda.
This means that it’s Edelstein who determines whether the left can bring a vote to the plenum to remove Netanyahu from power. For this reason, the left wants to replace him with their own appointee so that they can move their anti-Netanyahu legislation forward.
According to Simcha Rothman, legal counsel for the Movement for Governability and Democracy, and author of the recently published book The Ruling Party of Bagatz–How Israel Became a Legalocracy, the Supreme Court “sadly behaves like a political party that is part of the left.”
“This is good for the left; Blue and White benefits from this politically,” he told JNS.
A key principle of any modern democracy is the separation of powers between its judiciary, executive and legislative branches, with each assigned distinct and limited roles.
According to an analysis of government powers by the Congressional Research Service (CRS), “Most powers granted under the [United States] Constitution are not unilateral for any one branch; instead they overlap.”
The CRS document notes that “the vagueness of much of the Constitution also creates political conflict between the branches … much of it is open to a variety of interpretations. Not surprisingly, political actors in the different branches are likely to interpret its dictates in ways that enhance or expand their own authority.”
This mirrors exactly what appears to be happening in Israel. For Israel’s political left and right, it all comes down to how one interprets Israel’s Basic Law: The Knesset and the Knesset House Rules.
In any democracy, there are often cases where the Supreme Court rules on matters that overlap with the judiciary. Where the differences emerge however, is whether the Supreme Court can rule on when its ruling—in this case regarding the office of the speaker—must be carried out.
According to Rothman, “the law is very clear. The inner management of the Knesset is to be determined by the Knesset.”
Indeed, the “Basic Law: The Knesset” explicitly states that the Knesset’s work order will be determined by the Knesset, through law or by procedure.
“This is unheard of,” exclaimed Rothman, referring to the Supreme Court’s demand for Edelstein to call for a vote by Wednesday. “It is a usurpation of the power of the parliament,” he said.
“What the Supreme Court did is the first time in Israel and, to the best of my knowledge, the first time in any democratic country,” he said. “The court has zero basis in law or custom or any other known legal mechanism that I know of in Israel or anywhere in the world, to say you must appoint a new speaker by Wednesday.”
“The only other country where this could happen is in the Islamic Republic of Iran,” he added, half-jokingly.
‘The latest red line crossed’
A look back at the famous landmark American case of Brown v. Board of Education could be insightful.
In 1954, the Supreme Court ruled segregation in public schools to be unconstitutional, but it took more than a year for it to determine how to actually apply the law. In 1955, it declared that all local courts must arrive at a remedy “with all deliberate speed.”
This meant that while each state was required to abolish all forms of segregation in its schools, it was given the freedom to decide when the decision was to be implemented.
The vagueness of “with all deliberate speed” should have been applied in the case at hand, according to Edelstein’s thinking, and Israel’s Supreme Court should have been flexible in allowing him, as Speaker of the Knesset, to choose the date on which he would comply.
“The only other country where this could happen is in the Islamic Republic of Iran.”
Koppel seemed to agree with this line of thinking. He feels the court has been overreaching since the days of former Supreme Court president Justice Aharon Barak: “They’ve done away with restrictions on standing and justiciability, and have been using poorly defined standards of ‘reasonableness’ to block government policies. This is just the latest red line they have crossed, and it is leading us to chaos.”
According to Rothman, “you can tell the executive or legislature to do something as soon as possible, but the interpretation of ‘as soon as possible’ is left to the legislature,” he said.
But Supreme Court president Justice Esther Hayut was having none of it, writing that “the continued refusal to allow the Knesset to vote on the election of a permanent speaker is undermining the foundations of the democratic process.”
Edelstein responded by saying he “cannot carry out the ruling because it goes against my conscience.”
Rothman believes that Edelstein’s resignation was an honorable move, and that Edelstein was right to say, “I will not give the power of the seat of the Speaker of Knesset to the court. That is a breach of democracy.”
“If you let the court be the Speaker of the House, there is no separation of powers,” he noted.
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