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Edelstein must heed court ruling. The alternative is the end of the rule of law

Throughout Monday afternoon and evening, after the High Court of Justice had directed but not actually ordered Knesset Speaker Yuli Edelstein to stop shilly-shallying and put his job up for a vote in the newly elected House, an escalating cacophony of ministers and MKs loyal to Prime Minister Benjamin Netanyahu implored Edelstein to tell the justices to go to hell.

Deputy Education Minister Meir Porush, of the ultra-Orthodox United Torah Judaism party, accused the High Court of “seeking to form a judicial dictatorship in Israel” by directing the Knesset speaker on how to run parliament.

“The court has officially taken over the Knesset,” protested Tourism Minister Yariv Levin, who, like Edelstein, is a member of Netanyahu’s Likud.

Right-wing Yamina’s Transportation Minister Bezalel Smotrich arguably topped them all with a tweet from home quarantine opining that “the impertinence and contempt of the High Court judges for the Knesset is something that works like the coronavirus — when you don’t deal with it in time it gets stronger at an exponential rate.”

But Likud MK Amir Ohana expressed the contempt most succinctly. Above a photo of the court’s inquiry to Edelstein as to whether he would be holding the vote by Wednesday night, Ohana, who just so happens to be Israel’s minister of justice, tweeted: “If I were the Knesset speaker, I would reply: No.”

Yet as the calls for defiance mounted, one voice was conspicuously silent, that of Netanyahu himself.

Although Israel is in the midst of its battle against the coronavirus pandemic, and Netanyahu is both chairing the key discussions on how to thwart its spread and appearing on TV nearly nightly to tell the nation what he’s been doing and what they need to be doing, he has also doubtless been coordinating with Edelstein over Likud’s fight against the rival Blue and White party in the Knesset in general, and specifically Blue and White’s challenge to Edelstein’s job.

Speaker Edelstein has been in situ since 2013, and has become almost as synonymous with the position as Netanyahu is with the role of prime minister. But after the March 2 elections, when 61 MKs recommended Benny Gantz as prime minister, Gantz’s Blue and White woke up to the fact that it could muster a majority to replace Edelstein, and thus gain significant control over the Knesset agenda. It has its candidate for the post, Meir Cohen, ready to go.

Since one of Blue and White’s primary legislative goals is to pass a law that would disqualify an MK under indictment from forming a government, since Netanyahu is an MK under indictment, and since the Knesset speaker gets to determine the parliamentary processing of legislation, Netanyahu and Edelstein have a profound shared interest in the latter retaining his job.

And so it was that Edelstein, a little after 9 p.m. Monday night, backed by all those colorful calls to rebuff the court and in evident accord with Netanyahu, dispatched a 29-point response to the justices that could indeed be summed up, as Justice Minister Ohana had suggested, in the single word: No.

No, he was not going to commit to holding a vote on his job by Wednesday night. No, he did not believe he was damaging democracy in delaying the vote. No, he did not believe it was appropriate to hold the vote until the likely composition of Israel’s next government became clearer. And no, he did not believe the court had the right to intervene in the speaker’s conduct of parliamentary business.

In barely the time it could have taken the five-justice panel headed by Supreme Court President Esther Hayut to read Edelstein’s response, the court responded to the speaker. Its unanimous ruling — not a recommendation or a directive now, but a binding court order — was that he must hold the vote by Wednesday. His arguments were misguided, Hayut wrote in a devastating decision. He was “undermining the foundations of the democratic process” with his delaying tactics, sacrificing parliament’s independence to the interests of the executive. It was not for parliament to serve as “a cheerleader for the government,” she ruled. Quite the reverse: “The Knesset is sovereign.”

The court order was damning but it can’t have been too surprising — not to Edelstein, and not to Netanyahu. The question now is what Edelstein, or more relevantly, the hitherto silent prime minister is going to do about it.

For if Edelstein ignores the court, Israel would find itself in a constitutional crisis — despite the fact, or in part because of the fact, that it doesn’t actually have a constitution. The issue of the separation of powers between judicial, executive and legislative has been fraught for decades, with Netanyahu at the forefront of those who have long argued that the courts have overstepped their authority when issuing rulings against legislation, decisions and — yes, even before Monday — parliamentary procedure.

If Edelstein stands firm, he would be acting in contempt of court, or more accurately the office of the speaker would be acting in contempt, since it is the office of the speaker that the court is formally requiring to hold the vote. It is beyond unlikely that the court would or could take punitive action against an institution of the state such as the office of the speaker, according to legal experts with whom I spoke on Tuesday morning, and beyond unlikely that Edelstein himself could face punishment, since he would enjoy parliamentary immunity, and provisions for the fining, arresting or jailing of an MK would not apply in this case.

If the office in charge of Israel’s parliament deems itself not bound by the rulings of Israel’s judges, then why would any other Israeli be bound by them?

But the prospect of Edelstein defying the court is deemed by those legal experts to be close to zero. For all that angry, bitter and derisive rhetoric in the Netanyahu bloc on Monday, the Knesset speaker’s rejection of a High Court ruling would mean nothing less than the end of the rule of law in Israel, and the start of anarchy. If the office in charge of Israel’s parliament deems itself not bound by the rulings of Israel’s judges, then why would any other Israeli be bound by them?

What is far, far more likely — though who can calculate likelihood with any degree of confidence in these insane times? — is that Edelstein, albeit huffing and puffing, will comply with the ruling and hold the vote.

As for Netanyahu, he has a range of options — from continued silence to denunciation of the court’s intervention to the responsible adult’s declaration that “there are judges in Jerusalem” and they must be heeded. It is, again, unthinkable that he would urge defiance.

Indeed, this sorry tussle between parliament and the judiciary, the prime minister may well conclude, could ultimately come to serve his interests. He will have lost this battle — this highly significant battle — but Hayut’s very argument against Edelstein is the identical argument that Netanyahu and other long-time critics of the court’s ostensible overly interventionist approach have made for years.

“The Knesset is sovereign,” Hayut wrote — highlighting parliament’s vital independence from the needs and interests of government. “The Knesset is sovereign,” Netanyahu may argue down the line, if and when he regains the political strength to advance the so-called “override” legislation that would, once and for all, rein in the powers of those meddlesome justices.

An article by DAVID HOROVITZ – the founding editor of The Times of Israel.