Edelstein: Israel’s Supreme Court erased separation of powers

The High Court’s behavior appears to lend credence to years of right-wing criticism that the court is going beyond its authority.

By David Isaac, World Israel News

Israel’s High Court has “completely erased the principle of the separation of powers,” outgoing Speaker of the Knesset and Likud MK Yuli Edelstein told the weekly paper Makor Rishon in an interview that will be published in full on Friday.

The optics were on the side of the Supreme Court when Edelstein refused to hold a vote for his replacement, prompting the opposition party, Blue and White, to appeal to the court. The Supreme Court ordered him to do so on Monday. For the casual observer, his refusal appeared to be born of self-interest, an undignified effort to hold onto his seat.

But as more details emerge, Edelstein looks to have taken as high-minded an approach as possible given the circumstances.

One detail in particular that has emerged and raised eyebrows is that the court justices, led by its president Esther Hayut, did not seem to have even looked at Edelstein’s arguments before making their decision.

Edelstein had employed two attorneys to produce a three-page argument spelling out the reasons he could not in good conscience carry out the court’s request.

The document was submitted to the court at 9:00 a.m. on Monday. The court issued its decision 25 minutes later. It was 19 pages long, making it unlikely the court had taken Edelstein’s arguments into account before preparing it.

“At 9:00 o’clock, my reply was sent to the court, and about 25 minutes later, a phone call was received that the conclusive ruling was on the way to us. I realized that nobody bothered to read the things I wrote, and unfortunately I had to agree with some cynics who told me ‘Why do you bother? Take an A4 page and write ‘I agree’ or ‘I disagree’ and that’s it,'” Edelstein told Makor Rishon.

According to Alex Traiman of JNS, Edelstein was well within his authority to resist the court’s interference, pointing out that the Knesset bylaws “state that the incumbent Knesset Speaker remains in his role” until a new government is formed.

Edelstein couldn’t bring himself to carry out the court’s order. He said on Wednesday from the Knesset podium that the “decision is gross and audacious interference on the part of the judicial authority in the affairs of the elected legislative authority.”

But neither was Edelstein willing to enter a head-to-head confrontation with the court. He thus chose to resign.

“I regret that the court decided what it did and chose in an unprecedented way to interfere in the work of the Knesset in my opinion. My conscience doesn’t permit me to carry out this ruling. As a result, I’m announcing my resignation.

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“It will enter into effect in 48 hours and afterwards whoever is appointed can take whatever decision he thinks is right in his judgment,” he said, noting, “I hope the court will at least honor my judgment this time in regards to myself and my decision.”

The High Court didn’t seem to appreciate having its will challenged. Edelstein’s resignation was not to go into effect for 48 hours, meaning that a vote for a new speaker would be delayed until Monday. However, The Jerusalem Post reports that the court found a creative way around this with the help of advice from Knesset legal adviser Eyal Yanun.

It “carved out” some of Edelstein’s authority and gave it to Labor leader Amir Peretz. Its decision was reached shortly after midnight on Thursday. A vote for a new speaker will be held on Thursday.

The High Court’s behavior appears to lend credence to years of right-wing criticism that the court is going beyond its authority and is advancing a left-wing agenda, in this case Blue and White’s goal of barring Prime Minister Benjamin Netanyahu from serving as prime minister.

On March 17, the very day the 23rd Knesset was sworn in, Blue and White submitted three bills all of which specifically targeted Netanyahu. Two additional bills targeting Netanyahu have been submitted by the Israel Beiteinu party.

In order to bring them swiftly to a vote, Blue and White needs the speaker position in its pocket. The Knesset Speaker controls the legislative schedule. Blue and White is under time pressure as it only has two-and-a-half weeks left in its mandate to form a government, the success of which appears to be increasingly unlikely.

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It looks instead to be focusing its time on pushing through its anti-Netanyahu legislation.

It remains to be seen whether Blue and White will succeed in its plan of blocking Israel’s longest-serving prime minister from continuing in that role. With Edelstein now out of the way, it is one step closer.

His conduct, however, has begun to win praise. JNS’s Traiman says Edelstein’s “last act in his current position may have been finest. By resigning, he is refusing to allow the parliament he ran diligently to become an extension of the judiciary branch under his watch.”

Israel Hayom columnist Mati Tuchfeld wrote on Thursday that if Edelstein had carried out the court’s demand, it would have set “a dangerous precedent in the framework of which would be completed the total takeover of the Supreme Court by the Knesset.”

“Obedience to the Supreme Court would have removed the reins completely,” he wrote.

Of the court’s failure to consider Edelstein’s arguments, Tuchfeld writes, “Already for some time the court doesn’t bother to see justice done. Now in their minds there isn’t reason to make it even appear so.”