The Knesset is facing a constitutional crisis - opinion

Should the Knesset and the government reject the court’s rulings, the political and social crisis will turn into a constitutional crisis.

 THE HIGH Court of Justice hears petitions against the ‘Incapacity Law'. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
THE HIGH Court of Justice hears petitions against the ‘Incapacity Law'.

Now that the Knesset has gone out to its summer recess, with the political and social crisis no closer to being resolved than when it first emerged when the all-right government was formed at the end of December, the main focus has moved temporarily to the Supreme Court, in its capacity as the High Court of Justice, which has been called upon to deal with some of the legislative fruit of the Knesset’s summer session.

Some of the issues that have already reached the court are directly connected to the government’s judicial reform/upheaval itself, and others with its subsidiary results. First and foremost are the appeals to the court connected with the amendment to Basic Law: The judiciary concerning the ground of unreasonableness, involving a direct change in the performance of the judiciary.

 Another two pieces of legislation that have reached the court concern the “Tiberias Law” (an amendment to the Local Authorities [Elections] Law to enable an appointed interim mayor of a city to run in mayoral elections) and the “Incapacity Law” (an amendment to Basic Law: The Government to limit the grounds for declaring a prime minister to be “incapacitated”).

Both these laws may be viewed as inappropriate on grounds of being “personal laws” intended to serve the interests of specific persons – the first one in favor of Boaz Yosef, who is associated with Arye Deri, the second in favor of Prime Minister Benjamin Netanyahu.

So far, the court has ruled only on the Tiberias Law, deciding that the law should not go into force immediately, so that Yosef, who was appointed by Deri as interim mayor of Tiberias in 2020, will not be able to run in the approaching October municipal elections in Tiberias. It is assumed that the court will issue a similar ruling regarding a declaration of incapacity of a prime minister so that it will go into effect only after the elections to the 26th Knesset. 

 Protests against reform outside the Knesset.  (credit: RONEN ZVULUN/REUTERS)
Protests against reform outside the Knesset. (credit: RONEN ZVULUN/REUTERS)

The current stage of the crisis

If this should happen, the question is how the Knesset and government will react – whether they will accept or reject the court’s ruling, and, more critically, how they will react should the court decide to declare any of the amendments null and void, even though they concern basic laws.

Should the Knesset and the government reject the court’s rulings, the political and social crisis will turn into a constitutional crisis, which will be much more serious in the case of the Law to Cancel the Reasonableness Standard, which will come up before all 15 Supreme Court justices on September 12. 

Since Esther Hayut, the president of the Supreme Court, is about to retire in October, unless the coalition will manage to pass the law regarding how the justices and president of the Supreme Court are selected by then, Supreme Court Justice Yitzhak Amit, an ultraliberal who will remain the veteran Supreme Court justice, will automatically be selected as the new president, which will further aggravate the crisis.

BUT, OF course, the new focus of the crisis is not only connected to the court. The anti-reform demonstrations are still around and kicking, and even though it is not clear where exactly these demonstrations are heading, one has to be blind not to notice that there has been a clear intensification of the violence in the clashes between demonstrators and police forces. 

The violent clashes are not between all the demonstrators and all the police forces, but there is no doubt that many more demonstrators and policemen are ending up in hospital emergency wards than before, as radicalization has taken place on both sides, for which National Security Minister Itamar Ben-Gvir is partially responsible.

There is talk about some of the demonstration leaders actually considering forming a political party since they are frequently at odds with the existing leaders of the center/left parties. I believe such a development would be harmful, since at this stage the opponents of the reform must act with political sagacity, and at least some of the demonstration leaders appear to be more hotheaded and radical.

The opposition must contend at the moment with one of the anomalies of democracy: the fact that while the coalition holds a clear majority of 64 MKs out of 120, opinion polls suggest that if elections were held today, the coalition parties might lose up to 11 seats. It is a frustrating situation, but all the opposition can do is try to preserve its public opinion majority, while the actual power is effectively in the hands of the coalition. I believe that the formation of a new party by radical demonstrators would be counterproductive.

ANOTHER ARENA in which the issue plays a major role is that of media outlets and social media, where all sorts of positions and agendas are bandied around. I admit that I avoid social media, which is less resistant to fake news and manipulation, including manipulation by hostile foreign forces. 

Being a close follower of most of the media outlets, I can note that over time the discourse has become much less conciliatory and much more contentious. I feel that the program The Patriots on Channel 14 is the most problematic of all the various talk shows, in terms of its vulgarity, flimsiness with the facts, and disrespect for the opposition and its representatives, who appear occasionally on the program.

Nevertheless, I must admit that last Friday evening, the Ofira and Berkowitz show, on Channel 12, got pretty close to the vulgarity and prejudice of The Patriots. The two rather rowdy and shallow presenters of the program invited attorneys Eliad Shraga, head of the Movement for Quality Government, and David Fohrer, a former employee in the State Attorney’s Office, to participate in the program. 

Ideologically, I am much closer to Shraga than to Fohrer, but I find the latter an eloquent and occasionally even convincing presenter of right-wing positions.

Ofira took advantage of the fact that Fohrer referred to Attorney-General Gali Baharav-Miara as “the appointed official” to start yelling at him (“You won’t speak disrespectfully of women on my program”), and prevented him from completing a single sentence, while insulting him in every conceivable manner, including the fact that he was dressed in a suit and tie. Her conduct was actually no better than that of The Patriots presenter, former MK Yinon Magal.

While many of the TV panel debates on the current situation are not pleasant to watch or hear, and not always helpful in understanding what is actually going on, I should like to recommend a program on the Knesset TV Channel 99, Mevakrei Hamedina (the State Comptrollers or State Monitors), which is broadcast several times a week, in which a representative of the Right and one of the Left hold fierce but well-structured and disciplined debates on various issues raised by the editors of the program, frequently concerning the current crisis. 

The first such couple was made up of Dr. Gadi Taub from the Right and Uri Misgav from the Left, but each of them also appears with other partners (for example Taub with Polly Bronstein, and Misgav with Naveh Dromi), and there are other fascinating combinations.

In the current situation, every once in a while, someone comes up with a radical “solution” to the current crisis. One of these is the idea that the State of Israel should be divided into two states: Israel and Judea. I think this is a completely cockeyed idea, which I shall discuss next week.

The writer worked in the Knesset for many years as a researcher and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, was published by Routledge last year.