Since I wrote last week about the pending crisis between Israel’s state institutions, centered on the emergency powers that Prime Minister Netanyahu was claiming for Israel’s government in order to deal with the coronavirus crisis while doing away with any Knesset oversight, the situation has gotten substantially worse. Knesset Speaker Yuli Edelstein reopened the Knesset this week to allow the formation of the Arrangements Committee, which then formed four special committees and appointed a temporary Foreign Affairs and Defense Committee and a temporary Finance Committee, but Netanyahu’s 58 seat bloc boycotted each of the votes. While allowing these votes, however, Edelstein continued to block a vote on a speaker for the current Knesset, alternatively arguing that a vote was not required until a government was formed and that to allow a new speaker to be elected would destroy any negotiations between Likud and Kachol Lavan on forming a unity government.
After requesting a justification from Edelstein on why he would not allow a vote for Knesset speaker, the High Court unanimously ruled that Edelstein had to hold a vote by Wednesday. The ruling described the situation as an exceptional case where the court must intervene to protect the integrity of Israel’s parliamentary system of government, and rejected Edelstein’s argument that a government must be formed first, stating instead that the Knesset is sovereign rather than the other way around. Current Justice Minister Amir Ohana and leading future justice minister candidate Yariv Levin both urged Edelstein to defy the court’s ruling, while other Likud ministers and MKs – most prominently Nir Barkat, Gideon Sa’ar, and Gilad Erdan – along with Naftali Bennett and Ayelet Shaked criticized the court’s ruling but said that Edelstein had no choice but to comply. Netanyahu, unsurprisingly, was silent and has not been seen in public since Monday, but reportedly at the prime minister’s urging, Edelstein resigned as Knesset speaker on Wednesday, effective Friday, without holding a vote for his replacement and then shut down the Knesset, preventing a new speaker from being elected for the time being. Since Edelstein’s resignation does not kick in until Friday and the court order was that a vote for speaker had to be held by yesterday, Israel has now officially crossed the line of the Knesset speaker defying a direct ruling from the High Court.
The proximate cause of this crisis is a political fight; Netanyahu and Likud want to remain in power as the elections-driven deadlock continues, while Gantz and Kachol Lavan want to leverage their anti-Netanyahu majority to take whatever power they can. But there is a longer running and deeper battle going on here too, which is the appropriate balance of power between the Knesset and the judiciary. The argument that Edelstein and other right-wing MKs have repeatedly brought up is that separation of powers means that the High Court cannot intervene in the Knesset’s domain and decide when and for what purpose it must convene. This plays into the longstanding desire on the right to pass a Supreme Court override bill, which would allow the Knesset to limit the court’s oversight and vote to override any court orders striking down or circumscribing legislation.
In battles between courts and legislatures over the appropriate balance between the two, legislatures in democracies tend to have the upper hand for a couple of reasons. Legislatures are elected while courts are not, and thus in political systems where the legitimacy and power of the government is derived from their being chosen by a state’s citizens in free and fair elections, legislatures are viewed as the essence of democracy while courts are viewed as a necessary but anti-majoritarian institution. In addition, since legislatures are elected and are thus directly responsive and accountable to the citizenry, they are in a position to allow citizens to influence the government directly and to participate in the process by being heard in a variety of ways, from voting to interacting with elected representatives. This, of course, does not make courts or judicial oversight inherently illegitimate, but it generally makes courts wary of encroaching too far into legislative affairs. In the U.S., for instance, the Supreme Court has for decades used the political question doctrine as a way of not ruling on cases that will be politically thorny or controversial, invoking it just last year in refusing to interfere with partisan gerrymandering despite criticizing the practice itself.
The question over the power of the judiciary versus the power of the legislature shouldn’t be about the legitimacy of the judiciary itself. It should be about whether judicial oversight as currently construed is fair and appropriate, and if not, how to go about fixing it. Edelstein, Levin, and Ohana have spent the past week and a half fuming about separation of powers and invoking that principle to argue that the High Court has no right to interfere with anything the Knesset does. But separation of powers does not mean zero oversight or complete legislative supremacy. It means each branch exercising the powers reserved for it, and Israel’s Basic Law dealing with the judiciary – a law passed by the Knesset and not foisted upon it by unelected judges – explicitly states that the High Court has the power to order state authorities to carry out or refrain from carrying out acts in the lawful exercise of their functions. Ordering Edelstein to hold a vote for Knesset speaker is precisely that, so abstract appeals to separation of powers here are political distractions more than they are relevant legal arguments.
But the separation of powers issue here is not wholly irrelevant, even if the particular argument Edelstein is making involves a strawman. While Edelstein was asserting that separation of powers meant that he did not have to convene the Knesset at the High Court’s insistence since it is the sole province of the Knesset to decide who gets to be the speaker, he was concurrently trampling any notion of separation of powers in shuttering the Knesset and removing any ability to form Knesset committees that exercise oversight powers over the government. In Israel’s parliamentary system, the government is the executive despite it being made up of Knesset members, while the Knesset is the legislative and oversees the government. Either separation of powers is paramount or it isn’t, but Edelstein – and by extension Netanyahu – was trying to have it both ways. In addition, both the executive’s top legal official – Attorney General Avichai Mandelblit – and the legislative’s top legal official – Knesset legal advisor Eyal Yinon – were uniform in their opinions that the Knesset had to be reopened and that Edelstein was bound to abide by the High Court’s orders. This also undercuts the separation of powers argument here, as the official legal opinions of the executive and legislative branches is that separation of powers in this instance requires compliance with the judiciary.
The bottom line here is that above all else, this demonstrates the desperate need for an Israeli constitution. Israel is in the midst of what countless observers describe as a constitutional crisis, when in reality it is a non-constitutional crisis. There is a pitched battle over the power of the High Court because there is no constitution that makes the judiciary’s specific powers clear. There is an argument about separation of powers because nobody can say for certain what Israel’s system of government envisions on that front. There is a debate over checks and balances because every state in the world creates a system unique to its own history, institutions, and political culture, but Israel has never had the foundational constitutional debate over the appropriate allocation of authority to each branch. There are legitimate arguments on both sides here about the role of the judiciary and the role of the legislature, and instead of those arguments taking place within the confines of a constitutional framework, they are politically demagogued to death.
It was fascinating to watch champions of limiting the powers of the courts such as Shaked and Bennett nonetheless assert that the High Court must be respected. That is an acknowledgement that the rules of the game must remain paramount while they exist, even though some want to go through the process of changing those rules. If Netanyahu and Edelstein want to reformulate Israel’s political system so that the Knesset and the government have absolute supremacy, there is plenty of room for that policy argument. Unlike in the U.S., where a constitutional amendment can override any Supreme Court decision or precedent and there are limits on the scope of judicial review, Israel has no such mechanisms; the limitations on the Israeli Supreme Court are essentially whatever the justices decide. I would argue that there should indeed be a greater balance in a well-functioning democracy between the legislature and the courts, and that Israel should have that public debate. But when that should happen is in the context of Israel finally drawing up a constitution, and not when a prime minister under multiple indictments and a Knesset speaker with the support of a minority of MKs are using every extralegal trick up their sleeves to hang on to control, Israel’s existing system of government and democracy be damned.