INTO THE FRAY: Edelstein draws a line in the sand

By MARTIN SHERMAN

Edelstein drew a much-needed line in the sand against judicial intrusion into the sphere of the legislature and thwarted yet another attempt at the usurpation of both its autonomy and authority

The High Court ruling constitutes crude and arrogant intervention of the judiciary in the matters of the elected legislature. The High Court decision causes unprecedented harm to the people’s sovereignty and the Knesset’s sovereignty. The High Court decision undermines the foundations of Israeli democracy. As a democrat, as a Zionist Jew, as someone who fought against dark regimes, and as the speaker of parliament, I consider the High Court decision to be a grave, mistaken decision demonstrating a dangerous moral breakdown. – From Knesset Speaker Yuli Edelstein’s resignation statement, March 25, 2020.

The [High] Court is getting into waters that are too deep. Into a treacherous swamp of political opinions and beliefs. And this is dangerous both for the country and for the Court. It is dangerous for the country because it exacerbates social rifts. And it is dangerous for the Court because the Court is losing the principle foundation on which it must base its standing: The belief in its neutrality of the judicial system in public disputes—because when the Court represents a certain opinion, no matter how progressive, it enrages a significant section of the public…However, I must say that the Court contributes to creating this situation in that it inserts itself into areas where it has no place. It takes upon itself to decide on matters…which should be decided in the Knesset. — Justice Moshe Landau, former President of Israel’s High Court, Haaretz, October 6, 2000.

In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded… as political arrangements and public policies agreed upon in majoritarian decision-making arenas are likely to be reviewed by an often hostile Supreme Court. As a result, the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda… – Prof. Ran Hirschl, Towards Juristocracy, Harvard University Press, 2004.

These three excerpts, spanning two decades, encapsulate precisely the setting of the political drama that unfolded late last week, when then-Knesset speaker Yuli Edelstein refused to comply with a High Court decision, compelling him to convene the Knesset plenary for the appointment of a new post-election Speaker to succeed him—and instead chose to resign in protest against what he saw as inappropriate—even malign—encroachment into the sphere of the legislature.

Rage fueled by frustration and envy

In the wake of the delay in convening the Knesset, and under the weight of pressures generated by the COVID-19 outbreak, the main opposition party to PM Benjamin Netanyahu, Blue & White, broke apart. with about half its members opting to join in a Netanyahu-led coalition for 18 months—after which Blue & White’s head, Benny Gantz, would take over the role of Prime Minister.

This abruptly scuttled the Bibiphobic hope of Netanyahu’s many adversaries—which until then, appeared so tantalizingly close to fruition—of prising loose his seemingly iron grip on the premiership. Almost immediately, a commensurate rage, fueled by years of frustration and envy soon erupted. 

A veritable maelstrom of frothing-at-the mouth invective was hurled at him from erstwhile colleagues of Benny Gantz. 

For example, M.K. Yair Lapid, formerly Gantz’s number two in Blue & White, now head of the remnant Yesh Atid-Telem faction, together with M.K. Moshe (Bogey) Ya’alon, railed: “When the Speaker of the Knesset violates a  High Court order that is anarchy. Netanyahu sent Edelstein to burn down democracy…”

Similarly, M.K. Ofer Shelach, ostensibly Lapid’s right hand man, fulminated: “Edelstein demeans the High Court. This is an attempt to obstruct the Knesset…for the basest of political and personal motives…”

Neither capricious nor partisan

Labor M.K. Merav Michaeli accused Edelstein of “humiliating the Supreme Court”, charging that “this constitutional crisis is the bottom of the barrel, which we have reached over ten years of a slippery slope during Netanyahu’s corrupt rule.”

M.K. Eli Avidar of the purportedly “Right-wing” Yisrael Beitenu, headed by the recalcitrant Avigdor Liberman, a bitter Netanyahu foe, joined in the condemnation of Edelstein: “I feel personally angry. I saw what Edelstein said. To claim that the High Court is destroying Israeli democracy is the last nail in the coffin of statehood. Edelstein resigned to give Netanyahu an additional 48 hours. He simply misappropriated the Knesset plenary…”

Indeed, if it is at all possible that the anyone could generate the level of hatred that the Left harbors for PM Benjamin Netanyahu, it would Edelstein, post-resignation. 

However, Edelstein’s action was not as capricious or partisan as his opponents tried to portray it.After all, as the government had not yet been formed, compliance with the Court order could well have precipitated an unprecedented—and intolerable—situation, in which there would have been a parliamentary Speaker opposed to the ruling government coalition. 

In his defiance, Speaker Edelstein drew a much-needed line in the sand against judicial intrusion into the sphere of the legislature and thwarted yet another attempt at the usurpation of both its autonomy and authority. 

Eroding the notion of parliament as sovereign

Indeed, he could draw on the words of former High Court President, Moshe Landau, for endorsement of his position. In an interview with Haaretz, Landau condemned the process of ongoing judicial overreach: “The judges are taking on a role which they cannot perform and which they have not been trained to fulfill; because they have been trained to adjudicate, not to govern. Moreover, we have here an erosion of the idea of the parliament as sovereign. We have here a setting of the Court above the parliament…”

A similar sentiment was recently articulated by Haaretz columnist, Dr. Gadi Taub, in Israel’s Supreme Court Rigs the Game Again. In it, Taub, a senior lecturer at the Hebrew University of Jerusalem, writes: “It’s hard to blame those who think that Israel’s Supreme Court is in reality the left’s legal team. The recent ruling regarding the petition against Knesset Speaker Yuli Edelstein, forcing him to conduct a vote on his own replacement, certainly didn’t do much to diminish the feeling that the game is rigged in the left’s favor.”

He elaborates: “In this case the Supreme Court decided that in the name of ‘the foundations of the structure of our parliamentary system’ and to prevent damage to ‘the fabric of democratic life,’ it can violate the separation of powers and ignore the Basic Law: The Knesset, which states that only the legislature can set its own rules. It has decided to force Speaker Edelstein to call a vote on his replacement – even though according to the Knesset rules he has no obligation to do so before a new government is sworn in.”

Judiciary’s “doomsday weapon”

He goes on to expose the pretext underlying the unrelenting process of judicial overreach: “…when the court wants to impose its progressive judges’ tastes and values and cannot find a hook for it in any Basic Law, it resorts to the mysterious ‘fundamental principles of the system,’ which are said to be implied, though never stated…When these phrases are used, it’s a sure sign that the court is about to violate the principle of the separation of powers or run roughshod over explicit legislation. This is the doomsday weapon in the court’s arsenal, and it is reserved for cases when there is a clear and present danger to the fundamental principles of the left.”

Thus, Taub laments bitterly, echoing a claim I have raised in numerous previous columns (see here, here & here) “…the court has overruled the law repeatedly to permit the Joint List to run on this anti-Zionist platform. So now a majority obtained by deception and reliant on the votes of a party that seeks to dismantle ‘Zionist colonialism’ is going to rig the game in favor of the progressive left.” 

Thus, contrary to the outraged howls of indignation of his critics, by his courageous and principled stance, Edelstein has contributed greatly to the defense of Israeli democracy, in general, and to the bed-rock democratic principle of separation of powers, in particular.

Likewise, his actions foiled—at the eleventh hour—an egregious endeavor to set up a minority government dependent on the anti-Zionist, dominantly Arab Joint List, openly dedicated to the dismantling of Israel as the nation-state of the Jews, and associated with the country’s most virulent enemies.

For this, he deserves the nation’s praise—and gratitude. 

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies