How Edelstein, High Court could have tempered the meltdown - analysis

The actions of both sides may cost the country dearly in restoring a balance and respect between the branches of government.

Knesset Speaker Yuli Edelstein announces that he will leave the role, March 25, 2020 (photo credit: KNESSET SPOKESPERSON'S OFFICE)
Knesset Speaker Yuli Edelstein announces that he will leave the role, March 25, 2020
Maybe some kind of meltdown between outgoing Knesset Speaker Yuli Edelstein and the High Court of Justice was inevitable in the current political climate.
But both Edelstein and the High Court had some paths open to them that could have tempered the fiery nature of the meltdown. Both sides appeared to pour gasoline on the fires of accusations and counter-accusations.
The actions of both sides may cost the country dearly in restoring a balance and respect between the branches of government.
Edelstein could have agreed to hold a vote for his replacement either when Blue and White requested this with the support of 61 MKs or when the High Court clearly hinted to him it would order the vote if he delayed it.
Next, Edelstein did not need to resign to try to avoid having to carry out the High Court’s order, whether the court was right or wrong.
How about the High Court’s conduct?
Edelstein’s decision on Wednesday to resign created an unprecedented awkward position.
On the one hand, under standard Knesset rules, his resignation meant that the High Court’s order to allow a vote to replace him by the end of Wednesday would be delayed until Monday. This is because standard rules delay replacing a speaker for a 48-hour cooling-off period, during which the speaker can change his mind, and the Knesset was not set to meet again until Monday.
On the other hand, by resigning his position, he could no longer be held in contempt of court and was not actively blocking the High Court’s will as much as he was using passive Knesset procedure to delay it a few days.
Attorney-General Avichai Mandelblit was so thrown off by the situation that he presumed, it turned out incorrectly, that the High Court’s only way to resolve the situation was to try to order Edelstein to hold the vote even though he had resigned. The idea would have been that since he still had Knesset speaker powers during those 48 hours, he needed to carry out the court’s will.
Knesset legal adviser Eyal Yinon came up with a super out-of-the-box idea that the High Court jumped on. It was creative but carried its own costs.
Yinon suggested what he called a “surgical” carve out of Edelstein’s authority as speaker.
The surgery meant the High Court could order the next in line after Edelstein – the Knesset’s most senior member, Labor Party leader Amir Peretz – to schedule the vote on Thursday, with the Knesset Arrangements Committee, now controlled by the Blue and White Party, giving a green light in parallel.
At the same time, Edelstein would not be “removed” from office before his 48-hour cooling-off period ran out. Though this possibly avoided some additional insult to his authority (above ensuring he was being removed) in the very narrow legal world, much of the country interpreted this as an extraordinarily aggressive move and the equivalent of a body slam on the sovereignty of the Knesset.
A third possibility would have been for the High Court to completely remove Edelstein from office before the 48-hour cooling-off period ended.
Technically, the court chose a “middle/surgical” position. But that middle position still looked too much like the country pushing Edelstein out the door before he could even collect his things.
It also looked too much like the High Court micromanaging the Knesset.
True, the High Court explained it felt it needed to act quickly and assertively to correct Edelstein’s decision to ignore its order and send a nationwide message that it will uphold the law.
Yet, even for some who supported the High Court’s right to order a vote to replace Edelstein, the idea that it could not wait a few more days looked hyper-aggressive.
The court’s decision also created a bizarre and limbo situation in which from 12:22 a.m. Thursday morning there effectively would be two Knesset speakers: Edelstein, with most of the authority, on his way out; and Peretz, with authority to hold the vote to replace him.
Between creating an abnormal situation in which there were two speakers and appearing to taunt its critics on the Right who already believed the court intervenes too much in Knesset affairs, it is hard to see how forcing a Knesset vote a few days earlier will turn out to be a long-term win for the court.
If the vote had occurred a few days later, Edelstein would still have been out, a new speaker would still have been chosen, and some on the Right would have acknowledged that the court showed some restraint and respect regarding Edelstein.
Instead, both Edelstein and the High Court were presented as taking a “no-prisoners approach.”
When a constitutional conflict next occurs between the branches, those involved might recall how all of this could have turned out differently.