A tractor at a worksite near the Knesset accidentally severed underground communications cables to the parliament building on Wednesday, knocking broadcasts of the parliament’s proceedings off the air.
At roughly the same time, Speaker Yuli Edelstein of Likud sat at his desk at the front of the Knesset plenum and announced he was resigning so he wouldn’t have to carry out a High Court order to hold a vote to elect his replacement. He then shut down the plenum session.
And a short time after that, at 5 p.m., dramatic new restrictions went into force in the government’s ongoing fight to stem the spread of the coronavirus.
To many Israelis suffering under the weight of the coronavirus pandemic — fearing the contagion, living with ever-tightening restrictions on movement, and facing mass-layoffs and financial ruin — the actions of that tractor and of the parliament’s speaker might have seemed in sync. Israel’s political class was barreling toward a constitutional crisis on Wednesday as if nothing else mattered, as if nothing else was happening. For a few hours, the Knesset seemed detached from the rest of the country both literally and figuratively.
Yuli Edelstein was a well-regarded figure in the Knesset, seen by right and left as a fair-minded administrator and umpire of the parliament’s political confrontations over the years. His resignation announcement was all the more startling because of that staid reputation.
The announcement itself was full of pathos and anger. He explained that the High Court’s order to elect a new speaker on Wednesday was “based not in the language of the law, but in a partisan and extreme interpretation” that “contradicts the Knesset Statute…[and] demolishes the Knesset’s ability to function.”
He went on: “The High Court decision assaults the sovereignty of the people and of the Knesset. The High Court decision undermines the foundations of Israeli democracy.”
This continued for some minutes: “The High Court decision is a crude and arrogant intervention by the judicial branch in the workings of the elected legislative branch.”
Just hours before he was to be voted out of his position — and after over a week of refusing to convene the plenum to vote him out, despite the demand of a majority of MKs — Edelstein’s resignation, which doesn’t go into effect for 48 hours, may have bought Likud another five days of delays, unless the High Court again intervenes or the Knesset majority finds a procedural workaround enabling it to hold an extraordinary plenum vote before the next scheduled meeting of the plenary on Monday.
The political responses to the resignation followed the script of the past two weeks: most supporters of Prime Minister Benjamin Netanyahu praised Edelstein’s “courage.” Opponents called his resignation a “stinking trick.” Each blamed the other for “undermining democracy.”
It was a not-entirely-unexpected political bombshell, the climax of a strange and unsettling two weeks for Israeli politics that brought into sharp relief and even sharper confrontation the two competing visions of Israeli democracy that drive the two major political camps now battling for control of the Knesset and the Prime Minister’s Office. Indeed, it’s hard to think of a time when Israel’s political camps were so convinced that the other is dead set on destroying the delicate fabric of Israeli democracy, or could bring so much evidence to bear to prove its point.
On March 17, after Edelstein had first shuttered the Knesset, Blue and White No.2 Yair Lapid informed his half a million social media followers that “as of today, you no longer live in a democracy. The judiciary was closed four days ago. The legislature was closed today, illegally. And the previous Knesset speaker, who wasn’t elected to the position [in the current legislature], closed the Knesset after refusing the call of a majority of 62 MKs to pick a new speaker to replace him.”
A week later, it was Likud’s turn. Blue and White “decided to hijack the Knesset from 2.5 million right-wing voters,” the party said in a Tuesday statement. “With unprecedented destructiveness, ignoring all existing norms in the Knesset’s history, they decided to form no fewer than six temporary committees, in all of which they gave themselves a majority and put their representatives at the head. That flouts the Knesset’s seat distribution and accepted practice throughout 22 [previous] Knessets.” Likud would not cooperate with Blue and White’s “thuggish and undemocratic” new Knesset committees, it declared.
Has Likud hijacked and suspended Israeli democracy, and was now openly defying the orders of the country’s highest court? Was Blue and White’s aggressive takeover of the Knesset, including the unprecedented monopolizing of the powerful committee chairmanships, “taking advantage of the coronavirus pandemic to change the rules of the game to prevent half the public from expressing itself politically,” as Likud claimed?
The case against Edelstein
Yuli Edelstein spent the past week and a half explaining that the Knesset’s Statute explicitly allows him to set the plenum’s agenda — including refusing to hold a vote on electing his replacement.
He’s right. The Knesset Statute, the parliament’s collection of procedural bylaws, states that a newly-elected parliament must elect its permanent speaker before it votes to approve a new government, but there is no requirement to do so any sooner. He’s right, too, that in the interim, in the twilight period between a new parliament’s swearing-in and the new speaker’s election, the interim speaker technically presides over the plenum and sets its agenda. Or, at least, Edelstein is right in noting that no law stipulates that the interim speaker does not have the powers given to a permanent elected speaker to set that agenda.
Edelstein didn’t break any law in refusing to convene the plenum. But, say his critics, he nevertheless violated the intent of the law and upended a fundamental democratic norm long practiced in the parliament.
That, too, is correct.
Edelstein is the first interim speaker in Israel’s history to explicitly claim that he has the powers of a regular elected speaker, and to act on those powers.
“We’ve had the position of interim speaker for a long time,” noted Prof. Yuval Shany, vice president of the Israel Democracy Institute and a law scholar at Hebrew University.
“There’s a tradition, an understanding of what the interim speaker is.” To wit: Someone who runs the meetings of the plenum in the short period between the swearing in of the new Knesset and the election of a new speaker. “The essence of the position, its justification, was always purely functional. He didn’t have a say in how the Knesset functions except to fill that vacuum. Once a majority comes along and says it’s decided on a new speaker, then a new speaker is selected.”
So minimal were the interim speaker’s powers, by tradition and universal agreement, that until 2016 the position was handed automatically to the longest-serving MK, regardless of party.
In fact, in the Knesset House Committee debate on November 2, 2015 over the law that changed the selection method for the interim speaker — from the longest-serving MK to the outgoing speaker from the previous parliament — it was Likud’s own David Bitan, the committee chairman, who explained that “for those few hours” in which the interim speaker position would exist, “there’s no need to elect another person.”
No interim speaker in Israel’s history believed they were permitted to behave as Edelstein has over the past two weeks, to refuse to hold plenum votes even when a majority of the newly-elected Knesset demanded he do so. Edelstein broke longstanding Knesset tradition, reimagined an institution never before used in the way he used it — and in doing so preventing the Knesset from getting to work amid an unprecedented national emergency.
The case for Edelstein
Edelstein did indeed break with parliamentary tradition, said Prof. Avi Bell, who teaches at Bar Ilan University and the University of San Diego, and is a senior fellow at the Jerusalem-based Kohelet Policy Forum, a conservative think tank that opposes what it describes as rampant judicial activism in Israel’s courts.
But alongside Edelstein’s break with tradition, Bell pointed to Blue and White’s own numerous violations of longstanding traditions in the bitter political year that has passed.
For example, parliamentary tradition gives the majority coalition the committee chairmanships it needs to pass budgets and manage national security — the finance and foreign affairs and defense committees — but hands the opposition the lead role in those committees whose primary duty is to critique and ensure proper regulation of state bodies — the State Control Committee and the Economy Committee, for example.
No law made it so, but the tradition was so ingrained and so reasonable that no coalition would do otherwise.
No longer. Over the past two days, Blue and White has used its narrowest possible majority of 61 MKs to found multiple committees and retain all their powerful chairmanships for itself and its allies.
Likud was not wrong when it decried its rivals’ “thuggish and undemocratic” monopolizing of the Knesset chairmanships. This, too, was unprecedented.
Blue and White also declared there would be no more kizuzim, or offsets — the tradition, not unlike the US Congress’s “pairing,” according to which a coalition MK and an opposition MK can agree between them to absent together from a vote.
Those are two examples among the many longstanding informal rules that have mediated and regulated Israel’s parliamentary life, and which have been cast aside over the past year as partisan rancor has risen to a fever pitch.
“Both sides have taken those parts of the tradition that they like and thrown out the parts they don’t like, and they’re both acting within the rules,” noted Bell.
The real crisis, he argued, began not with Edelstein’s delays, however lamentable or scandalous one might think them, but with the High Court’s Monday order that Edelstein call an election for speaker despite no law requiring him to do so.
The court acknowledged that Edelstein was not violating the Knesset Statute, but insisted that his interim role did not allow him to resist the will of the majority in the newly elected parliament. It was the principle of the thing: in acting as he has, even if it is within the technical bounds of the rules, he was undermining the “fabric of democracy.”
“When a court does that, it’s not exercising the power of the law, but its discretionary power,” replacing the judgment of the authorized official with its own judgment, charged Bell.
Or in other words, “the court decided to issue an illegal decision. It drew a line in the sand. There are so many other ways it could have done this. It could have said, ‘it’s not justiciable. Work it out, boys.’ It could have said, ‘We’re just not giving a decision at this time.’”
Indeed, as Edelstein himself noted on Wednesday, the court issued its Monday order less than an hour after Edelstein had submitted his position in writing.
That is, “they wrote the decision before Edelstein had even responded” to the petition against him, Bell said.
“The question is, what was Edelstein supposed to do? I think he did the honorable thing. He said, ‘It’s illegal, I can’t enforce it. I will resign.’”
Who represents the Knesset?
The court issued two orders against Edelstein’s foot-dragging: to establish committees that can oversee the government’s emergency ordinances, and to hold a vote on his replacement. The first, in which the court ordered the Shin Bet mass-surveillance program shuttered by Tuesday if parliamentary oversight wasn’t instituted, he obeyed. The second he defied. The difference between them reveals something important about his thinking.
Where some justification arguably existed for the judiciary demanding urgent parliamentary oversight of a government’s emergency powers, he conceded the point. But when it came to holding a vote for speaker, he saw the demand as an undisguised attempt by the court, without even the pretense of a legal excuse, to impose its will on the Knesset.
Edelstein was defending the supremacy of the Knesset’s own rules within its walls against a court trying to claim for itself the right to order the Knesset to act otherwise.
Or was he?
Not so fast, insisted Shany. Both sides of the argument represent “the Knesset” in some sense: one side is an interim speaker, by tradition (if not law) a powerless placeholder; the other represents a majority of elected MKs.
“It’s a legal debate on the nature of the interim speaker. He thinks he has the full powers of a permanent speaker. The court, the attorney general and others think that’s not true, that the essence of his job is to fill the position until a majority coalesces to choose another speaker — and then he no longer has room for judgment. He’s a representative of that majority. He can’t defy it.”
In such a clash, said Shany, “when two sides don’t agree, you go to court. What the court decides is what you do. That’s the ‘abc’s’ of the rule of law.”
And he added: “Maybe history will side with him. He has an argument, fine. And a court can be wrong sometimes. But you have to obey even if it’s wrong. A citizen can’t say he has the privilege of not obeying a court because he doesn’t agree with it.”
Edelstein has been interim speaker for much of the past year, something Israel’s political system has never experienced. Blue and White leader Benny Gantz now holds the majority in parliament, but would lose that majority if he tried to form a government with it. That, too, is unprecedented.
And it is that trick of the parliamentary math that opened a window for interim speaker Edelstein to attempt to delay Gantz’s long-promised constitutional changes that would prevent Netanyahu (or any indicted MK, but also specifically Netanyahu) from becoming prime minister. While Blue and White rails at Edelstein’s “undemocratic” delays, it has proposed several sweeping and never-before-seen constitutional modifications, including legislation that would prevent the current Knesset from dissolving to new elections if it fails to form a government. It suggests passing these amendments using only the threadbare majority at its disposal.
That, too — attempting to pass such significant constitutional changes in a newborn Knesset, one that has yet to negotiate a ruling coalition — is unprecedented.
Edelstein’s defiance of the court has sparked fierce responses from across the political spectrum, but there may be less there than meets the eye. Israeli democracy is no stranger to hard times, to dire emergencies and even to the vagaries foisted upon it by vague or incomplete electoral rules.
In the end, Edelstein has acted less nobly than he pretends. He claimed to be delaying the plenum votes in order to force Gantz and Netanyahu to compromise. Perhaps. Then again, his steps only weakened one side’s negotiating position.
Meanwhile, Blue and White, while decrying Likud’s “undemocratic” delays, is hard at work drafting constitutional changes that target a single individual, who also happens to be their chief political opponent. A longstanding but informal Knesset tradition once decreed that significant changes to electoral laws should only be allowed to come into force at a distance of an election cycle or two, to ensure that the rules of the game wouldn’t be altered merely to serve the political needs of the present majority.
Israel’s political system is deep into uncharted waters, and clear-cut answers are few and far between. But one thing became crystal clear on Wednesday: the old rules and longstanding customs that ensured respect across party lines and the smooth functioning of parliamentary politics are quickly falling prey to an unrelenting and debilitating political stalemate.
The timing, in the midst of a global pandemic and economic crash, and as the government shutters the public space by emergency decree, is not ideal.