Knesset Legal Adviser: Choosing New Speaker 'Poses Danger to Democracy'

At High Court hearing of petitions to force Knesset speaker to hold vote to replace him, parliament legal adviser says choosing new speaker without knowing if he'll be in governing coalition will lead to legislative crisis

Knesset Speaker Yuli Edelstein, January 12, 2020
Ohad Zwigenberg

The High Court of Justice on Sunday heard two petitions asking it to compel Knesset Speaker Yuli Edelstein to convene the Knesset to vote on replacing him and establishing the Arrangements Committee, which governs all parliamentary work between an election and the formation of a new government.

Edelstein last week decided not to hold a vote on appointing a new speaker, invoking his authority to do so until a new government is sworn in. Edelstein said at the time that choosing a new speaker would halt the negotiations toward a national unity government. Similar statements were made by Prime Minister Benjamin Netanyahu.

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The petitions were filed by Benny Gantz’s Kahol Lavan party and the Movement for Quality Government. Although Edelstein had said the Knesset would convene again Monday, the petitioners were seeking to force him to convene it to avoid any additional delays.

Kahol Lavan wants Edelstein replaced with a Knesset member from its slate, in order to pass legislation that would prevent Netanyahu from forming a government while under indictment.

Knesset legal adviser Eyal Yinon told the court that choosing a new speaker when it’s not guaranteed that he will be part of the governing coalition “could hurt democracy,” because the speaker has the power to hinder the government from getting its proposals on the Knesset’s agenda.

“I can promise you that every Monday and Thursday, we’ll have a crisis over an attempt by opposition parties to torpedo the government, and it will be impossible,” he said. “Nobody knows what the next government will look like. We’re planting a bug in the system, and this, too, undermines our constitutional fabric.

“It’s not easy to be blind to the surrounding circumstances [efforts to set up a unity government],” added Yinon. “I can’t point to a specific time after which we can no longer delay the vote. The delay doesn’t undermine the legitimate mandate that the president gave to [Benny Gantz]. Not everything needs to be decided immediately and it’s not right at this time, six days after the Knesset was sworn in and things are not clear, to make decisions, certainly not precedent-setting ones.”

Justice Neal Hendel sounded unconvinced by Yinon’s argument. “It’s very problematic to block the majority because we think what they want is wrong,” he said. Justice Uzi Vogelman added, “There’s a constitutional problem here.” The High Court panel is headed by Supreme Court President Esther Hayut. Its other members are Justices Hanan Melcer and Isaac Amit.

Generally the Knesset speaker is chosen the day the new Knesset is sworn in, and so it has been until the last Knesset, which operated under a transitional government for its entire term. The deadline for choosing a new speaker comes before the new government is sworn in.

Replacing a speaker once he is elected requires a majority of 90 MKs or the speaker’s resignation. The first Sharon government ruled while the Knesset speaker was Avraham Burg of Labor, after Ariel Sharon defeated Ehud Barak in the special direct election for prime minister during the second intifada in 2001.

Yinon added in his response that while Edelstein can use his judgment on setting the Knesset’s agenda, his judgment on electing a new speaker should be “relatively restrained,” since he is essentially an interim speaker until a permanent one is chosen, and it is clear that a majority in the Knesset want to elect a permanent speaker immediately.

He noted, “In most cases, certainly in the last 20 years, the speaker was elected with broad support that crossed party lines, symbolizing the consensus in the Knesset that the Knesset speaker is perceived as a statesman.”

Attorney General Avichai Mendelblit also submitted a response to the High Court, saying there was a need for the Knesset to oversee the work of the government as it copes with the coronavirus crisis, and that its work should not be restricted by the Health Ministry’s limitations.

“Even in this situation, and perhaps even more so, the basic democratic principles of the rule of law and individual rights still apply. Two of the basic guarantees of preserving these values are the existence of independent and effective judicial review and the existence of parliamentary oversite of the government’s work,” he wrote.

The petitioners argued that the absence of parliamentary oversite constitutes “a deep blow to the principle of separation of powers, which is the lifeblood of Israeli democracy,” and they accused Edelstein of “doing critical harm to the fabric of parliamentary life."