Israel: Supreme Court Rules Coronavirus Pandemic Does Not Justify Delay in Electing Knesset Speaker

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(Mar. 26, 2020) On March 23, 2020, the Supreme Court, by an extended panel of five justices, ordered the Knesset (Israel’s parliament) speaker to convene the Knesset plenum to appoint a new Knesset speaker for the 23rd Knesset at the earliest possible time and no later than March 25, 2020. The decision was unanimous with Court President Justice Esther Hayut providing the main decision. ( HC 2144/20 Movement for Quality of Governance in Israel et al. v. Knesset Speaker, the Knesset, the Knesset Legal Adviser and the Likud Party.)
Background
Five petitions were submitted to the Supreme Court directed against the current acting speaker’s decision not to include in the Knesset plenary agenda to the 23rd Knesset a request supported by a majority of 61 of the 120 Knesset members to elect a new speaker. Members of the 23rd Knesset were sworn in on March 16, 2020 , following the March 2, 2020 national election . Additional issues included in the petitions centered on the delay in forming new Knesset committees, an issue that became moot following the convening of the Knesset on March 23, 2020, and the appointment of essential committees, including the Foreign Affairs and National Security Committee and the “Coronavirus Committee.”
The outgoing speaker had refused to schedule the election of a new permanent speaker because, in his opinion, what was needed for the State of Israel during the emergency caused by the coronavirus pandemic was a broad unity government. He argued that “the purpose of political moves done in a hurry, such as electing a permanent Knesset speaker and passing controversial legislation, is to eliminate the possibility of unity that the people want.” (HC 2144/20, Justice Hayut’s decision para 2.)
Parties’ Arguments
The petitioners claimed that the acting speaker’s refusal to include the election of a permanent Knesset speaker on the Knesset’s agenda was unreasonable, without authority, motivated by a conflict of interest, and tainted by political considerations. They alleged that section 2(b) of the Knesset’s internal rules provides a deadline for electing a speaker no later than the establishment of the government. The current speaker was not elected by the current Knesset but was acting on the basis of the principle of continuity under § 37 of Basic Law: The Knesset , which provides that “[t]he outgoing Knesset shall continue to hold office until the convening of the incoming Knesset.” By holding onto his position as speaker and refraining from scheduling the vote, they argued, he frustrated the wishes of the majority of Knesset members, thereby harming public trust in the government authorities and the principle of separation of powers. (Para. 4.)
Objecting to the petitioners’ claims, the acting speaker insisted that, in accordance with the provisions of section 2(b), the speaker can be elected by the Knesset at any time between the convening of the Knesset and of the government. He argued that by delaying the vote until a new government was formed, even against the request of the majority of the Knesset members, he had exercised his authority in a reasonable way and was guided by considerations relating to the ongoing coalition negotiations, especially in light of the outbreak of the coronavirus and the state of emergency in the country. The Knesset legal adviser also opposed the petition but expressed a narrower view, alleging that, because the acting speaker served only on a temporary basis until a new one was elected, and the majority of Knesset members had called for the election of a permanent speaker, the acting speaker’s “discretion to postpone the deadline provided under section 2(b) [was] being diminished with the passage of time.” (Para. 5.)
Decision
According to Hayut, in accordance with section 25(b) of the Knesset’s internal rules, the speaker has the authority to determine the Knesset’s agenda and the date of its deliberations. Therefore, as a rule, the Court would refrain from intervening in the speaker’s determinations except in cases where there is a threat to the “fabric of democratic life” or to the “foundations of our parliamentary system.” (Para. 7.)
Under section 20(a) of Basic Law: the Knesset ,
[t]he Knesset shall elect from among its members a Chairman [Speaker] and Vice-Chairmen. Until the Chairman is elected, the most senior Knesset member who is not the Prime Minister, a Minister or Deputy Minister, shall serve as Interim Chairman. In this section, “senior” means the one whose term of office in the Knesset is the longest, consecutively or non-consecutively, and among those with equal seniority – the oldest.
Section 2(b) of the Knesset’s internal rules provides the speaker discretion to schedule the vote for a new speaker no later than the date on which the government is formed.
Contrary to the acting speaker’s position, Hayut determined that because the acting speaker’s tenure is based on the principle of continuity of Knesset operations and that scheduling the vote affected the acting speaker personally by potentially ending his tenure, the acting speaker’s discretion on the matter was very limited. This conclusion, she noted, gained additional support by the fact that during the past year there had been in Israel no less than three elections and the speaker had been serving as the acting speaker throughout the whole election cycle. The speaker’s use of restraint in exercising his discretion to schedule a vote on the election of a new speaker, Hayut noted, was particularly important considering his special role in leading the Knesset, which functions independently of the other branches of government. (Para. 9.)
Hayut held that the acting speaker’s decision not to convene the plenum to elect a permanent speaker was inconsistent with the scope of authority conferred upon him as speaker and exceeded the scope of his discretion. (Paras. 8–9.) His refusal to schedule the vote, in her opinion, frustrated the will of the electorate by thwarting the will of the majority of Knesset members. Additionally, delays in electing a speaker would have a detrimental effect on procedures for constituting a government in accordance with Basic Law: the Government . Rejecting the acting speaker’s position that the appointment of a speaker depended on formation of the government, she clarified that, in the system of government that existed in Israel, the government enjoyed the support of a majority in the Knesset. The government also had a considerable ability to influence the Knesset’s activities because of that support and because of the practice of party discipline , which at times directs Knesset members to vote according to party line rather than their personal convictions. This did not include, in her opinion, the ability to adopt measures that could substantially curtail the independence of the Knesset. Hayut held that the hope of establishing a government of unity, cited by the acting speaker as the basis for his postponing the election of a new speaker, was a political consideration. As such, it could not serve as the basis for his discretion in determining which subjects would be included on the Knesset’s agenda, particularly when he himself would be directly affected by the election of a new speaker. (Paras. 10–11.)
Hayut concluded that the speaker’s continued refusal to allow a vote for the election of a new speaker by the Knesset plenum undermined the foundations of the democratic process, harming the independent status of the Knesset and the process of the proper transfer of government. As such, these circumstances constituted one of the cases in which the Court’s intervention was necessary to prevent harm to the parliamentary system of government. (Para. 15.)
Verdict
The Court ordered the Knesset acting speaker to convene the Knesset plenum at the earliest possible time and no later than March 25, 2020, to elect a new Knesset Speaker for the 23rd Knesset. (HC 2144/20 final verdict.)

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