Israel’s Supreme Court Loses Its Patience With Netanyahu

As the COVID-19 pandemic rages around the world, Israel’s year-and-a-half-long constitutional crisis appears to be approaching its apex. Invoking the need for an emergency response to the coronavirus, caretaker Prime Minister Benjamin Netanyahu and his proxies in the Israeli Parliament, the Knesset, have taken dramatic steps. Effectively, they attempted to make a temporary holdover government, which lacks the support of the majority of the current Knesset, the sole fully functioning branch in the country’s constitutional system.

Netanyahu has tried plenty of risky maneuvers in the past. This time, however, he and his supporters appear to have gone too far. The Supreme Court has ruled that the obstruction of the newly elected Knesset’s work—against the will of the majority of its members—must come to an end. Astonishingly, compliance with the court’s ruling is not at all guaranteed. At stake are the basic tenets of Israel’s constitutional regime—and possibly Israeli democracy itself.

How Did We Get Here?

Events in Israel are unfolding at a breakneck pace. Constant political maneuvering has continued even as the country, like others around the globe, faces the daunting challenge of weathering a pandemic. The government has declared a national emergency, and the Israeli economy has all but shut down. Emergency orders and regulations have been issued that include severe restrictions on individual liberties, complete with invasive electronic surveillance administered in part by the Internal Security Agency (ISA)—whose responsibilities typically do not extend to domestic civilian crises.

The emergency has been compounded by Israel’s prolonged political paralysis. A parliamentary democracy, Israel held a third round of elections in just one year on March 2, after the previous two rounds failed to produce a viable government. Currently, the country is run by a caretaker government that has remained in power since 2018 due to the political deadlock. A majority of newly elected Knesset members, 61 of 120, has requested the acting Speaker of the Knesset, Yuli Edelstein—also a holdover from the previous three Knessets—to convene the Knesset plenum in order to elect a permanent speaker. Leading that majority is Benny Gantz, the Knesset member who recently received the mandate to form a government from Israel’s President, Reuven Rivlin. The Gantz bloc has also demanded the establishment of Knesset committees to oversee the government as it acts to address the COVID-19 emergency.

Edelstein, however, has denied the Knesset majority’s request to hold a vote to elect a new speaker since mid-March. Perhaps he is worried about losing the speakership, which he has held for the past seven years. Perhaps he is acting on the instructions of Netanyahu, who appears to be investing significant efforts to prevent the Knesset—in which he has lost the majority—from fulfilling its oversight and legislative functions. Key to this dynamic is the fact that Netanyahu has been indicted on graft charges, and the Gantz camp has made no secret of its intention to promote legislation that would disqualify an indicted individual from serving as prime minister and impose mandatory term limits. Gantz’s bloc may very well have the votes in the new Knesset to pass this legislation.

The acting speaker has also slow-walked the establishment of Knesset committees, despite the need for legislative oversight of emergency government action. Notably, once the government learned that it did not have the support of the Knesset for some of the COVID-19 orders and regulations, it simply circumvented the Knesset and moved forward based on executive power alone.

What’s more, Netanyahu’s criminal trial was set to begin on March 17. Conveniently for him, the trial has been postponed indefinitely after Israel’s Justice Minister suspended the work of most of Israel’s judiciary due to the COVID-19 emergency. Only urgent cases are currently being heard. The suspension of the judiciary by executive order itself raises significant constitutional difficulties. The judiciary is an independent branch and its functioning cannot be controlled by the executive. Importantly, however, the Supreme Court, in its capacity as the High Court of Justice, remains open.

These events—unimaginable as recently as one year ago—represent the confluence of a global health emergency, a prolonged constitutional crisis, a political impasse, and Netanyahu’s legal predicament. With the Knesset effectively paralyzed for weeks, the Supreme Court has remained the only organ that has stayed outside Netanyahu’s orbit of direct control.

The Supreme Court Draws the Line

The Supreme Court has been bombarded with petition after petition demanding it to disqualify Netanyahu from serving as prime minister over his criminal indictment, to review the emergency orders and regulations issued to combat the pandemic, and now, to compel the speaker of the Knesset to stop stonewalling and respect the wishes of the parliamentary majority. The court has so far opted for avoidance. It dismissed many of these petitions as unripe, while providing the government and the Knesset speaker ample opportunity to change course voluntarily to avoid a judicial order.

The stakes for the court, after all, are enormous: these are all novel, sensitive constitutional issues, and however the court decides, it risks drawing the ire of about half of the Israeli population. To make matters worse, the court has been the subject of a delegitimization campaign promoted by large swaths of Israel’s political elite.

Despite its best efforts to avoid weighing in on these issues, however, Edelstein and the government left the court with no other choice. On March 19, the court issued an order to suspend the enforcement of COVID-19 quarantine violations detected under the emergency surveillance regulations until March 24. If by that date the Knesset fails to form the necessary committees to oversee the implementation of the regulations, the court held, the state would be banned from exercising any of the authorities contained in the regulations. Subsequently, the Knesset formed the relevant committees.

The decision signaled the court’s displeasure with the government’s exercising draconian emergency powers with no parliamentary oversight. The emphasis on the procedural aspects of the regulations rather than the substantive constitutional questions that the regulations raise is also noteworthy. The court was clearly aware of the exigencies of the COVID-19 crisis and was hesitant to deprive the government of tools policymakers deemed necessary for combating the virus. That being said, the case has not been resolved: the order was an interim measure, not a final judgment. The court may well address the substantive questions in due course, perhaps when the emergency abates.

Another major petition, filed by the Gantz bloc and several civil society groups, requested the court to order Edelstein to convene the Knesset plenum to elect a permanent speaker—presumably from the anti-Netanyahu majority bloc, which has 61 votes. A unanimous five-justice panel, chaired by Chief Justice Esther Hayut, accepted the petition after Edelstein declined an invitation from the court to convene the Knesset voluntarily. The court required that a vote to elect a new speaker be held by March 25.

Edelstein argued that “judicial intervention in the speaker’s discretion to determine the Knesset plenum’s agenda and put the selection of a speaker to a vote constitutes an unprecedented intervention in politics and the speaker’s discretion, and would be mistaken at this time.” He asserted that delaying the selection of a speaker reasonably falls within the scope of his authority under Basic Law: the Knesset, and that the delay was necessary to facilitate negotiations toward a unity government—especially considering the extant state of emergency as a result of the pandemic.

The court recounted the precedent on judicial intervention in internal parliamentary matters, which instructs that such intervention should be reserved to exceptional cases in which there is a threat to “the democratic texture of life” or “fundamental elements of our parliamentary system.” This was such a case, the court concluded. It found that the acting speaker’s discretion here is particularly limited because he has been in the acting position in the last three Knessets as a result of the political deadlock, as opposed to a permanent role. The court expressed concern that Edelstein’s refusal to allow for the election of a permanent speaker might abrogate the will of the voters, considering that the majority of the incoming Knesset has called for a vote. Finally, the justices held that conditioning the election of a permanent speaker on negotiations to form a government constitutes a complete role reversal. “The Knesset is sovereign,” not the government, the court reminded the speaker. And, quoting an earlier case, the court went on to say that the Knesset “is not the government’s cheerleader squad.”

The opinion is laced with rhetoric that highlights the courts’ view of the stakes. Chief Justice Hayut noted that “since the dissolution of the 20th Knesset on December 12, 2018, we are imprisoned in an irregular governmental condition that is an outgrowth of the failure of elected officials to form a permanent government in Israel, even after three rounds of elections…” Justice Isaac Amit asserted that “in hard times, it behooves us to guard the shafts and hoops of the carriage, lest it fall apart. In sensitive and difficult times, in particular, undermining the very existence of the system and deviating from the written and customary rules of the game is prohibited.”

The court drew the line at an effort by an acting speaker of parliament to disregard the will of the majority of parliament members regarding the administration of the national legislature, and to shirk parliamentary oversight over emergency action. It is remarkable that the court rendered this sensitive, unprecedented decision in defense of Israeli democracy against the backdrop of a national and global emergency. Legal scholars like Eric Posner and Adrian Vermeule have argued that “in emergencies, the judges have no sensible alternative but to defer heavily to executive action, and the judges know this.” Perhaps. But some cases present constitutional violations so grave that even emergency measures must bow.

Nevertheless, Israeli democracy is in a poor state. Key political players in Netanyahu’s camp—including, according to reports, Netanyahu himself—have implied that compliance with the court’s decision with respect to the speakership was optional. If Edelstein stays defiant come March 25, and no political compromise is reached, the Israeli constitutional system will suffer a blow more destructive than anything that came before.