Israel’s Supreme Court last Monday ordered Knesset Speaker Yuli Edelstein to hold a vote to choose his successor no later than today (Wednesday). The Court issued its unanimous decision on this issue following a petition submitted by three left-wing NGOs, the three parties making up the “Blue and White,” the Avigdor Liberman’s Yisrael Beitenu party, and the leftist Labor-Meretz alliance.
The petition came in response to Edelstein’s decision to postpone the vote until a more proper time due to the coronavirus crisis. Though Edelstein said the vote would take place soon, in the eyes of his rivals, postponing it meant no less than postponing democracy. Ever since it was formed in January 2019, the battle cry of Blue and White and the rest of the Left has been saving Israeli democracy from the machinations of the Right.
For Blue and White, Edelstein’s move threatened its chances of forming a government after it gained the recommendation of a majority of 61 members of Knesset and party leader Benny Gantz was tapped as the next prime minister. But this slim majority includes the anti-Zionist Joint Arab List, meaning Gantz wasn’t certain to succeed in establishing a minority ruling coalition after he ruled out the possibility of having the Arabs sit in his government.
Still, the anti-Bibi bloc does constitute a majority of 61 against the 58 seats of the Right, and therefore is intitled to vote in its own candidate for the position of Speaker of the Knesset. That candidate is most likely to be Meir Cohen, which is itself interesting given that MK Cohen has in the past stated that Israel should be a democratic-only state (ie. Not a “Jewish” state).
Controlling the agenda
By voting in its own Speaker, Blue and White will be able to control the parliamentary agenda. Specifically, it means that they will be able to pass three proposed laws that would make it impossible for Netanyahu to continue as a prime minister.
In other words, the position of Speaker of the Knesset is at this moment critical to the future direction of Israel, at least in the near term.
The problem with all of it, however, is that while not required by law, the Knesset Speaker has always come from the biggest party, which is also usually the one to form the governing coalition. The reason for this is the need for mutual trust between the Prime Minister and the Knesset Speaker, without which the Knesset can’t function properly. Legal as it is, therefore, Blue and White’s demand to replace Edelstein even before it has succeeded to form a stable coalition is, in the eyes of the pro-Bibi block, an objectionable precedent.
Given all of this, Edelstein’s postponing the vote should have been seen as a kind of filibuster, an accepted political procedure designed to delay or prevent legislation. In this case, the filibuster’s purpose in my view was to bring the Knesset to a standstill until Gantz ran out of time to form a coalition, and the mandate was given over to Netanyahu.
Rule of law, or rule of judges?
All of this means that Edelstein didn’t break any law, and it is this which raises the question of why the Supreme Court found the need to step into the political arena, and by so doing presenting itself once again as possessing higher authority than the sovereign. That is the true violation of democracy, which demands a healthy separation of powers between the legislative, executive, and judiciary systems.
The Supreme Court’s decision, written by its President Esther Hayut, concluded that “there is no escaping the conclusion that in the circumstances created, this is one of those exceptional cases where this court is required to intervene to prevent a violation of our parliamentary system.” The key phrase here is “exceptional cases” determined by the justices, who are working under former Supreme Court President Aharon Barak’s principle of the “test of reasonability,” which has in the past compelled the Supreme Court to issue rulings on issues not falling under the rule of law.
Edelstein’s response was one of defiance. “Tonight, I told the Supreme Court – I won’t agree to ultimatums … I can’t agree because this means that the Knesset’s agenda will be determined by the Supreme Court and not by the Speaker of the Knesset, who is assigned this role.”
One must wonder if this brings Israel closer to the scenario once articulated by Aharon Barak, who while serving as the president of the Supreme Court said that in the event that the government refuses a court order, he would consider it “a coup, a putsch, of which the outcome will be determined by tanks. If the Chief-of-Staff will send tanks to protect the court it will end in one way, and if he will send tanks to protect the government it will end up differently.” This is an amazing statement, an actual threat, from a body that has neither the purse nor the sword.
Though theoretically possible, this extreme scenario is unlikely, at least for now. As I write these things, I hear that Edelstein just announced his resignation, but not before accusing the Supreme Court of ruining the Knesset.
This is the first time in Israel’s history that the Speaker of the Knesset Speaker has resigned his post. And this resignation will no doubt serve as further justification to those who by now have lost all trust in the Supreme Court.