Case Number

HCJ 2144/20

Date Decided

3-25-2020

Decision Type

Original

Document Type

Full Opinion

Abstract

Elections for the 23rd Knesset were held on March 2, 2020, and the new Knesset was set to be sworn in on March 16, 2020. On March 15, 2020, in anticipation of the swearing in of the Knesset, several factions, comprising 61 Members of Knesset, requested that the acting Speaker of the Knesset, MK Yoel (Yuli) Edelstein, include a motion for the election of a permanent Speaker for the 23rd Knesset on the agenda of that session. The Speaker refused.

Petitions challenging that decision were filed in the High Court of Justice by The Movement for Quality Government, the “Hozeh Hadash” Association, The Association for Progressive Democracy, the Blue and White faction and the Labor-Meretz faction, and the Yisrael Beiteinu faction (the Petitioners).

The Petitioners argued that the acting Speaker had a personal conflict of interests, is acting unreasonably, and that his decision not to include the election of a permanent Speaker of the Knesset on the Knesset agenda is tainted by extraneous considerations. The Petitioners added that sec. 2(b) of the Knesset Rules of Procedure requires that the Speaker of the Knesset be elected no later than the date on which the Knesset convenes for the purpose of establishing the Government, and emphasized that the current Speaker, who acts by virtue of the Knesset continuity rule, is frustrating the will of the majority of the Members of Knesset, and is undermining public trust in the organs of government and the principle of the separation of powers. The Petitioners also asked for additional remedies concerning the appointment of an Arrangements Committee and the issue of the application of the Public Health (New Coronavirus) (Home Isolation and Other Directives) (Temporary Provision) Order, 5790-2020, to the activity of the Knesset,

The Respondents argued that the Court should not intervene in the Speaker’s decision. According to the Speaker, he enjoys discretion in setting the agenda of the plenum, and he therefore acted within the bounds of his authority, reasonably, and in accordance with custom. The Knesset Legal Advisor argued that the Speaker is granted discretion in regard to setting the agenda, and that the Knesset Rules of Procedure require the election of a permanent Speaker prior to the establishment of the Government. However, the current Speaker holds office by virtue of the continuity doctrine, and holds his office “as a temporary trust” until the election of a permanent Speaker. Therefore, inasmuch as a majority of the Members of Knesset requests that the Knesset elect a permanent Speaker immediately, the margins of the Speaker’s discretion in regard to postponing the date contract with the passage of time. The Likud faction argued that the Speaker acted in accordance with the law and the Knesset Rules of Procedure, and that the Court should not intervene in his exercise of discretion.

On March 23, 2020, the High Court of Justice (President E. Hayut, Deputy President H. Melcer, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit) issued a partial judgment, treating only of the issue of the election of a permanent Speaker. In granting the petitions, the unanimous Court held:

Per President E. Hayut:

  1. As a rule, the Court refrains from intervening in internal parliamentary matters, except in special cases that threaten harm to the fabric of democratic life or to the fundamental structure of our parliamentary regime.
  2. Section 2(b) sets a timeframe according to which the latest date for the election of the Speaker of the Knesset after its convening is the date of the establishing of the Government. This provision leaves it to the discretion of the acting Speaker to decide upon the date within this timeframe in which it is possible to put the election of the permanent Speaker on the agenda of the plenum.
  3. Given the fact that the acting Speaker serves by virtue of the continuity rule, and given that the matter directly concerns him, the discretion afforded him in this regard is very limited and defined. The acting Speaker holds his office “as a temporary trust” until the election of a permanent Speaker. This exceptional situation necessarily affects the scope of the Speaker’s authority and his discretion. The Speaker’s decision not to bring the matter of electing a permanent speaker for a plenary vote is incompatible with the scope of his authority as acting Speaker, and it deviates from the margin of discretion granted to him.
  4. The defect in the Speaker’s conduct primarily inheres in the fear that it represents a frustration of the will of the electorate. The essence of the democratic process is the possibility of translating the votes received by the members of the Knesset, as the elected representatives of the people, into political influence. In the present matter, the house factions, comprising 61 Members of Knesset, seek to exercise their political power in order to elect a permanent Speaker for the 23rd Knesset. Intervention in this effort of the majority of the Members of Knesset constitutes a form of harm to the decision of the electorate.
  5. The Speaker’s position that the election of a permanent Speaker is contingent upon the efforts to form a Government puts the cart before the horse. The Knesset is the sovereign. The Knesset is not “the Government’s cheerleading squad”. Political considerations have no place in the margin of discretion granted the Speaker on the question of whether or not to include motions for the agenda of the Knesset plenum, and all the more so when the matter is the election of the Speaker himself.
  6. The Speaker’s continued refusal to allow the Knesset plenum to vote on the election of a permanent Speaker undermines the foundations of the democratic process. It clearly harms the status of the Knesset as an independent branch of government and the process of governmental transition. Therefore, there is no recourse but to conclude that we are concerned with one of those exceptional cases in which the intervention of this Court is required in order to prevent harm to our parliamentary system of government.

Per Justice Y. Amit (concurring):

  1. In its plain meaning, democracy is “majority rule”. However, majority rule is not omnipotent. In the area of legislation, majority rule is subject to limitations deriving from the need to preserve the fundamental rights of people and citizens. In parliamentary activity, majority rule cannot trample the rights of the parliamentary minority. This is the source of the Court willingness to review even “internal” decisions of the legislature in order to protect the right of the minority, despite the judicial restraint that it exercises in regard to intervention in Knesset decisions.
  2. The present petitions entangle this Court in a situation that was not previously imagined. The Petitioners ask the Court to extend relief to the Parliamentary majority and protect the institutional, “core” right of the majority to realize its rights. The harm to the parliamentary majority that seeks to elect a Speaker of the Knesset who “in the fulfilment of his duties represents all the factions of the Knesset and stands at the head of the Knesset” constitutes harm to the fabric of democratic life and to the fundamental structure of our parliamentary regime. This Court’s intervention is required in order to allow the parliamentary majority to realize its right to elect the Speaker. Our judgment is not a form of intervention, and is not a “takeover” of the Knesset’s agenda, but merely a buttressing of the status of the Knesset as an independent branch of government, separate from the Government, and a fortiori from an interim government.

Justice U. Vogelman (concurring):

  1. The authority to set the Knesset’s agenda allows for arranging “internal parliamentary” life, while addressing the quantity and substance of the subjects before the Knesset. This authority to arrange is not authority to ignore a request by a majority of the Members of Knesset to carry out a statutory procedure required by a Basic Law due to a conceptual or political view held by the acting Speaker. In a situation in which a majority of Knesset Members request to hold an election for the office of Speaker in the framework of sec. 20(a) of Basic Law: The Knesset, the election process should be permitted to proceed without delay, and it should not be frustrated by reason of the acting Speaker’s view that electing a Speaker will harm the attempt to form a unity Government.

Deputy President H. Melcer (concurring):

  1. Every “interim government” suffers from “democratic deficit”, and an “interim government” after elections suffers from the most severe deficit, inasmuch as the voters have had their say. In such a case, the Knesset should oversee the “interim government” more closely, and act in accordance with the will of the majority of its members, while respecting the rights of the minority.
  2. In Great Britain, on the eve of Brexit, the Prime Minister sought to prorogue Parliament so that it would not prevent him from completing the separation process from the European Union that he wished to advance. He therefore turned to the Queen, who agreed, on the basis of the representations of the Prime Minister. An expanded bench of the Supreme Court held that there was no authority to prorogue Parliament. This affair is similar to our own, and the reasons given there are appropriate here, as well.
  3. Intervention is required here, as it was in Great Britain in R. v. Prime Minister, as without it, “the fabric of democratic life” and “the fundamental structure of our parliamentary regime” will be undermined.

The Court therefore made an order absolute instructing that the Speaker of the Knesset must convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23rd Knesset, and no later than Wednesday, March 25, 2020.

Following the issuing of the above judgment, on March 25, 2020, the acting Speaker convened a plenary session of the Knesset, gave notice of his resignation, and adjourned the session. In so doing, the Speaker violated the order absolute instructing him to convene the plenum for the purpose of electing a permanent Speaker. In response, the Court held:

Per President E. Hayut:

  1. Respect for the rule of law is the cornerstone of every democratic regime, and it is proven, inter alia, by obeying judicial decisions and orders. This duty to comply is imposed upon the entire population, and the organs of government are not exempt. Never in the history of the State has any governmental office openly and defiantly refused to carry out a judicial order while declaring that his conscience does not allow him to comply with the judgment. An unprecedented violation of the rule of law requires unprecedented remedies.
  2. The Court therefore ordered that the most veteran Member of Knesset be appointed as Speaker to act as follows:

(1) To apply to the Arrangements Committee, by virtue of sec. 19 of the Knesset Rules of Procedure, for the purpose of convening the Knesset plenum tomorrow, Thursday, March 26, 2020, even though it is not a day that the plenum convenes under the Rules of Procedure;

(2) To set the agenda for that session, by virtue of sec. 25 of the Knesset Rules of Procedure, and include the motion for the election of a permanent Speaker of the Knesset

(3) To preside over that session.

Keywords

Courts -- Judicial oversight, Elections

Download

Share

COinS