Defying judges, Knesset speaker has plunged Israel into constitutional anarchy
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Op-ed

Defying judges, Knesset speaker has plunged Israel into constitutional anarchy

With its executive in protracted transition, and its judiciary and legislature now deadlocked, Israel’s governance has broken down… during the worst health crisis in memory

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

An Israeli woman takes part in a demonstration "to save Israel's democracy" outside the Knesset in Jerusalem, March 25, 2020. (Emmanuel DUNAND / AFP)
An Israeli woman takes part in a demonstration "to save Israel's democracy" outside the Knesset in Jerusalem, March 25, 2020. (Emmanuel DUNAND / AFP)

I’d like to think that these lines will be overtaken by developments, for the better, before you’ve even had the chance to read them.

But at this moment, early on the afternoon of Wednesday, March 25, Israeli democracy appears to have fallen off a cliff. In the middle of the worst global health crisis in memory.

In an unprecedented act of defiance, the speaker of the Knesset, Likud MK Yuli Edelstein, has opted to resign rather than obey a ruling from the High Court of Justice that he must hold a vote today on who is to fill his speaker’s post in the wake of the March 2 elections. Blue and White leader Benny Gantz has the support of 61 of the Knesset’s 120 MKs who want to elect Blue and White MK Meir Cohen to the position, and thence to gain control of the parliamentary agenda and proceedings from Prime Minister Benjamin Netanyahu’s Likud and its allies.

Rather than allow this to happen, Edelstein shuttered the Knesset on March 18, then rebuffed a High Court directive issued midday Monday to hold the vote by today, and has now rejected a subsequent binding High Court ruling that he must do so.

Knesset Speaker Yuli Edelstein gives a press statement in the Knesset in Jerusalem on November 27, 2019. (Yonatan Sindel/Flash90)

Not only has Edelstein resigned in a flurry of aggrieved criticism of the judiciary for its ostensible dangerous and undemocratic intervention in matters of parliamentary procedure, but he has also noted that his resignation only takes effect in 48 hours and has meantime again shuttered the Knesset plenum. New petitions to the High Court argue that he is thus acting in contempt, since he has refused to comply with its ruling and is preventing anybody else from complying with it either.

Edelstein claims his resignation is an act of conscience. But his refusal to follow a direct High Court order, and his closing of the legislature in a bid to thwart that ruling for several days, is unconscionable.

The Knesset’s legal adviser, Eyal Yinon, has told Edelstein that, resignation or not, the speaker is obligated to reopen the House and hold the vote on who is to fill the position. Edelstein said no, and has reportedly told colleagues that “the Knesset is adjourned and that’s the end of it.”

As far as anybody can determine — which is not terribly far — Edelstein currently has no deputies, and it’s far from clear whether they would be authorized to step in if he does. The legal experts are currently attempting to determine whether the senior MK in the House, Labor’s Amir Peretz, is authorized to fill the breach.

As far as anybody can determine — which is not terribly far — the High Court cannot personally hold Edelstein in contempt, since he enjoys immunity.

As far as anybody can determine — which is not terribly far — the High Court has no effective means of imposing a vote for speaker on a Knesset that currently has no speaker willing to schedule it. But then again, this is territory we have not walked before.

The irony — if we have the capacity to consider irony at this pregnant moment, when the rule of law in Israel seems to be getting trampled underfoot — is that the warring sides are both making the same central argument: The Knesset is sovereign.

Prime Minister Benjamin Netanyahu (right) and Supreme Court Chief Justice Esther Hayut at a ceremony at the President’s Residence in Jerusalem on June 17, 2019. (Noam Revkin Fenton/Flash90)

It was cited in Supreme Court President Esther Hayut’s five-justice unanimous ruling late Monday to underline that Edelstein cannot deny the will of the elected majority of MKs just because it happens to inconvenience the minority bloc of which he is a member. The Knesset “is not a cheerleader for the government,” she wrote, dismissing Edelstein’s previous assertion that the election of a permanent speaker required clarity over the nature of the incoming government. The reverse was true, she stated. “The Knesset is sovereign.”

And it was cited by Edelstein in his resignation speech before he shuttered the House this morning. “The High Court decision causes unprecedented harm to the people’s sovereignty and the Knesset’s sovereignty,” he declared.

Each side — the highest court in the land, and the chair of its parliament — has accused the other of “undermining the foundations of Israeli democracy,” an allegation that legal experts say they cannot recall being previously traded between these branches of government.

The president of Israel, Reuven Rivlin, himself a former Likud MK, has already indicated where he stands. When Edelstein shuttered the Knesset the first time, on March 18, Rivlin immediately telephoned him to warn against the damage to democratic rule.

Tellingly, however, the prime minister of Israel, Benjamin Netanyahu — still holding the post even though Gantz was tasked on March 17 with the Sisyphean task of trying to muster Israel’s next government — has not spoken out since this crisis erupted.

So this then — in an Israel which has labored with its executive in protracted transition through three non-decisive elections, and which now sees the other two branches of government, the legislative and the judicial, deadlocked in conflict — is what constitutional anarchy looks like.

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