The High Court v the Knesset: A constitutional crisis years in the making

This week’s constitutional crisis was a long time coming.

Israel has been in political limbo for over a year, with three elections and the rhetoric getting all the more divisive as time went on. The country is being managed by an interim government that cannot break past the framework of the 2018-2019 budget. And then COVID-19 struck, impacting every single Israeli.

But while most of Israel was more worried about avoiding getting infected with coronavirus and staying sane under lockdown, the political squabbles continued.

The 61 MKs backing Blue and White Benny Gantz as prime minister decided to immediately use their majority to make changes in the Knesset rather than wait for a coalition to be formed – and one of their arguments was that the government’s response to coronavirus needs oversight. Meanwhile, sporadic negotiations took place between Gantz and Prime Minister Benjamin Netanyahu and their teams to form some kind of emergency unity government to facilitate the response to this public health emergency.

These two processes seemed to be at odds with each other – setting up the Knesset to work against Netanyahu and his partners, while negotiating to work with them.

That’s when Knesset Speaker Yuli Edelstein stepped in. Edelstein used his authority as speaker to block votes to replace people in various positions with the Gantz bloc’s candidates – including bringing in a new Knesset speaker – because he thought replacing them would prevent the formation of a national-unity government which is so necessary after a year of multiple elections and has greater urgency amid the coronavirus pandemic.

The center-left bloc argued that Edelstein is preventing the will of the majority from being enacted, and accused him of cynically trying to stay in the speaker’s seat and help Netanyahu. The Movement for Quality Government petitioned the High Court of Justice, and parties joined in. The judges suggested that Edelstein allow the votes to take place, and the speaker took several hours to submit a detailed document in which he refused. Less than 20 minutes later, the court ordered him to hold the vote.

Then, on Wednesday, Edelstein resigned, saying that his conscience will not allow him to do what the court says, and that the High Court has violated the independence of the legislature. He ended the Knesset meeting within minutes of it starting. His resignation was to take effect 48 hours later, but the High Court opened the door for the Knesset to vote for a new speaker before then.

There have been more dramatic political developments since then, and likely more in the hours after press time. They may overshadow the constitutional crisis of the past few days. But it’s worth pausing to examine what this meant for Israel and democracy.

THE PATH to a constitutional crisis was clear, long before we got into this unprecedented political and public health situation.

When Edelstein made his final speech as Knesset speaker – at least for now; he could get the job back in coalition talks – he did not criticize the High Court in a vacuum.

Edelstein’s accusation that the High Court of Justice is "harming the principle of majority rule, which is one of the bases of democracy," and has struck "a mortal blow to the Knesset as an independent branch" of government, echoes criticisms that have been heard for years from his colleagues on the Right.

The seed was planted way back in the mid-1980s when the High Court of Justice began to expand its concept of who has standing and what cases are justiciable. People without a direct interest in a case could petition the court on the grounds that they are of public interest.

At the same time, the court developed a new standard in its judgments on government decisions: reasonability. If the court thinks a government decision is "extremely unreasonable," it becomes illegal – regardless of whether the written law addresses the situation or not.

Then came the 1992 "constitutional revolution," when the Knesset under a Likud-led coalition passed human rights laws Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Supreme Court president Aharon Barak declared that basic laws have constitutional ascendancy, though Israel has never had a constitution.

All of this added up to Israel having a highly activist judiciary.

For most of those years, judges were largely self-selecting; politicians were on judicial selection committees, but there were not enough of them to have a decisive influence until fairly recently. Activist judges often selected other activist judges, and those with more conservative views on how the judiciary should behave were in the minority.

THERE HAVE only been left-wing governments for nine of the 34 years since this trend began, so it’s only natural that decisions made by right-wing governments and laws passed by majority right-wing Knessets were the most common targets of judicial activism.

Just over a decade ago, opposition to judicial activism started to take root in the Israeli Right, especially in the Likud. The party founded by Menachem Begin, who famously bowed his head to the courts, saying “there are judges in Jerusalem” after they ordered to evacuate the Elon Moreh settlement, was now criticizing the judges – arguably, because Israeli judges are not what they were in 1979.

The Right has made various attempts to rein in the court, some more successful, some less. The successes include changing the proportion of politicians to judges and Israel Bar Association representatives on the judicial selection committee, and former justice minister Ayelet Shaked convincing the Bar to side with her in making conservative choices rather than going along with what the judges pick. Another success is the Nation-State Law, which was originally proposed as a way to ensure the courts would take Israel’s character as the Jewish state into consideration, putting things like the Law of Return on equal footing with basic laws dealing with human rights.

But the flagship goal of the judicial activism critics, to pass the “override clause” that would allow the Knesset to re-legislate laws struck down by the High Court, has always remained out of reach.

Meanwhile, the Center and Left in Israel have generally supported all of the activist strides the High Court has made – with the exception of a Kadima government including justice minister Daniel Friedmann.

When the Right sought to pass laws that would change the way the judiciary operates, the Left would call it out as undemocratic.

In addition, the court has been another tool on the left-wing political opposition’s belt. There have been repeated cases of the Left losing votes on bills it felt violated a basic law, or where it saw the procedure or politicking around it as unfair, so it petitioned the High Court against this.

Edelstein assumed the role of Knesset speaker in 2013 and has made his view clear on what he thinks about the court intervening in the Knesset’s work: He doesn’t approve of it at all.

In 2013, Edelstein told Arutz Sheva: "The courts do not respect the Knesset enough. Unfortunately, there is blatant intervention in the Knesset’s processes. We must have a separation of powers.

"As long as MKs go to the High Court, it is very difficult," he added. "I think if there were ideal judges, they would say it’s not in their authority. MKs should do politics instead of going to the High Court."

In 2017, at the inauguration of the 20th Knesset, Edelstein went even further: "Separation of powers in Israel has become a myth….The Knesset’s status has been worn thin. We have no choice but to make a change…. The spread of power between the three branches of government and ensuring that each does its own unique job are necessary actions…. These are the foundations of our system of government."

WHICH BRINGS us to March 2020. There are two separate issues at hand when it comes to the events leading up to Edelstein’s resignation. First is the stand Edelstein took in the Knesset, and the second is the court’s intervention.

Was it Edelstein’s job to hold up Knesset proceedings – even if he had the legal authority to do so – to facilitate unity talks? In other words, just because he could do it, should he have done it?

And then, did the court have the authority to intervene in what is obviously a case of Knesset procedure? This is not just a test of “reasonability,” but a matter of one branch of government dictating how the other branch does its job. Are all three branches equal, or is the court superior?

Each side has its own answers to these questions, and one can fall on one side for the first matter, and the other side for the second. It would be reasonable to argue that Edelstein overstepped – but so did the court.

Either way, this was an interesting moment in the annals of Israeli democracy that could have serious consequences in the future. It’s ammo for those fighting against judicial activism. But the lengths to which Edelstein went to get out of obeying a court order is also ammo for those who say the Right has gone too far in challenging the court.

What this means going forward probably depends on what kind of government we end up with next, but it could be enough to convince both sides that there finally needs to be a basic law to regulate the way the court and the Knesset relate to each other.