Does the Knesset Need the Court’s Help?

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We are in the midst of an ongoing constitutional and governmental crisis, resulting, among other things, from the combination of a parliamentary system with a proportional electoral system and the establishment of a low electoral threshold as a condition for representation in the Knesset. In its rulings, the Supreme Court defines its role in this crisis as serving as a counterbalance to the Knesset in its relations with the executive branch. The Court's motivation for intervention is threefold:

First, the Knesset is the only governing body directly elected by the public under a parliamentary system. Second, the Knesset includes representation for the opposition, whereas the government comprises only representatives of the coalition. Third, the government possesses executive power ("the power of the sword," in the language of the American Founding Fathers), making it essential to preserve and strengthen the Knesset's capacity to oversee the government.

This essay focuses on those rulings in which the Court seeks to intervene in the balance of power between the Knesset and the government within the Knesset itself. I do not intend to challenge rulings that require governmental or administrative action to obtain approval through Knesset decisions or even primary legislation. Such rulings assume that the government and the Knesset are semi-separate entities, external to one another, whose combined actions are necessary as a precondition for governmental action. They do not seek to reshape the internal power dynamics between the branches. This category includes case law addressing the "primary arrangements" doctrine, which requires the Knesset to regulate a matter comprehensively through primary legislation rather than leaving the determination of fundamental principles to the executive branch. It also includes rulings requiring explicit legislative authorization as a condition for infringing upon human rights and those deriving from the principle of administrative legality, which mandates statutory authorization for governmental action.

I intend to challenge the recent case law that seeks to restructure the balance of power between the Knesset and the government within the Knesset itself. In essence, this case law, at times, does not even mention the term "opposition," but the effect of judicial intervention is to strengthen the opposition at the expense of the ruling coalition in the Knesset. I will challenge this new judicial policy from four angles:

First, this case law identifies the parliamentary system as a factor contributing to the weakening of the Knesset and as a problem warranting judicial intervention. I seek to challenge the judicial perception of the nature of the parliamentary system.

Second, this case law also identifies the proportional electoral system as a problem contributing to the weakening of the Knesset and the strengthening of the government within the Knesset in recent years. I propose that the Court is operating under an empirical assumption that is not supported by reality. On the contrary, in many respects, the government has weakened, and the Knesset has strengthened concerning their internal relations within the Knesset.

Third, through its judicial intervention, the Court achieves the opposite result: it contributes to blurring the distinctions that still exist between the Knesset and the government under a parliamentary system, thereby undermining the very objectives it seeks to advance through its intervention.

Finally, the Court’s judicial intervention has not achieved the specific desired outcomes in the contexts addressed by its rulings. Therefore, the Court should reconsider its approach to this matter. It appears that the harm caused by judicial intervention outweighs its benefits.

I will focus on five rulings from recent years (2016–2021) in which I identify a new judicial trend aimed at reshaping the balance of power between the Knesset and the government within the Knesset:

1. The Gas Framework Case, where the Court invalidated the stability clause within a government decision intended to assure gas companies that the agreed-upon economic conditions would not be reopened over the next decade.

2. The Kwantinsky Case concerning the taxation of a third apartment, in which the Court invalidated a law due to insufficient parliamentary deliberation.

3. The Biennial Budget Case involving the Academic Center, and

4. The Stav Shafir Case, both of which involved the Court identifying abuse of the constituent authority in the enactment of Basic Laws through temporary provisions.

5. The Edelstein Case, where the Court dictated the timing of the election of the Knesset Speaker.

These rulings reflect a new judicial approach shared by both conservative and liberal judges.

Challenging This Jurisprudence: Alternative Voices in Israeli Academia

It is essential to challenge this jurisprudence because other voices within Israeli academia criticize the Court for not doing enough to intervene in the balance of power between the Knesset and the government within the Knesset itself. These critics draw upon similar writing in comparative constitutional law, which asserts that constitutional courts worldwide should develop procedural requirements for legislatures to protect democracy.

Challenging the Judicial Perception of the Nature of the Parliamentary System

In each of the relevant cases, the Court chooses to intervene and grant relief to petitioners due to the perceived need to strengthen the Knesset vis-à-vis the government within the parliamentary system. For instance, in the Gas Framework Case, the Court justified its intervention by stating that “the Israeli reality is—so it seems—a constant weakening of the power of the Knesset compared to the power of the government, which is naturally more pronounced in coalitions with a small majority that sometimes depend on the whims of one or two Members of Knesset.” Similarly, in the Kwantinsky Case, Justice Solberg noted that “These matters are even more pertinent in the parliamentary system practiced in Israel, in which the executive branch holds a majority among members of the legislative branch; as a result, the government usually ‘controls’ the Knesset in practice.” In the Edelstein Case, the Court expressed a similar view, suggesting that a Speaker of the Knesset who opposes the government and does not belong to the coalition may be desirable and can strengthen the independence of the Knesset. The Knesset, the Court asserts, must not become a “cheerleading squad for the government.”

These rulings, therefore, reflect the Court’s understanding that the parliamentary system does not establish an impermeable separation between the Knesset and the government. However, they are flawed in that they fail to acknowledge that the relative weakness of the Knesset is a conscious choice of the parliamentary system itself.

In a pure presidential system, confrontation between the legislature and the executive is expected and even encouraged, as such confrontation does not necessarily result in repeated electoral cycles. Even if a budget is not passed under a presidential system, the president does not leave office. At most, there is a governmental paralysis, officials are dismissed due to the inability to pay salaries, but there is no threat to the stability of the state.

In contrast, a parliamentary system deliberately limits the public’s choice to representation in the parliament. After all, a government cannot be formed without an active or passive majority supporting it within the legislature. The parliamentary system deliberately creates an identity between control of the legislature and the executive. Inevitably, the executive controls the majority within the parliament. Nevertheless, the balance of power is preserved because the legislature retains the ability to dismiss the government through a vote of no-confidence. Even under the constructive no-confidence system present in Israel, a government can be brought down through the failure to pass a budget. Additionally, sixty-one Members of Knesset can form an alternative government without new elections.

Judicial intervention aimed at creating or enhancing “confrontation” between the legislature and the government may inadvertently contribute to the proliferation of electoral cycles in Israel and endanger the stability of the state.

Challenging the Judicial Perception Regarding the Impact of Proportional Elections

The Court acknowledges that the system of proportional elections is "responsible" for the Knesset’s weakness. However, the Court fails to consider that the proportional electoral system also weakens the government. An empirical examination of the balance of power between the Knesset and the government in Israel reveals that, in many respects, the Knesset’s power relative to the government within the Knesset has strengthened numerically compared to the early decades of the state's existence. In my article, “The Edelstein Ruling and the Chronology of the Balance of Power Between the Knesset and the Government in Israel,” I divide the development of power relations between the two bodies into four periods, taking into account both the first political upheaval and the transition to direct elections for the prime minister and their subsequent abolition (1949–1977, 1977–1996, 1996–2003, 2003 to March 2021). In this essay, I will focus on the two periods that frame the discussion.

In Israel’s early years, the coalition controlled, on average, two-thirds of the Knesset. By contrast, in the most recent period, the government struggles to maintain even a simple majority in the Knesset. Meanwhile, during both periods, the average number of opposition factions remains unchanged. Therefore, it is no more difficult for the opposition to organize and operate today than it was in the past. In fact, since the establishment of the state, private legislation has increased both in absolute numbers and as a percentage of all legislation passed.

Before 1996, the largest party in the coalition controlled, on average, 61% of the coalition. Since the abolition of direct elections for the prime minister in 2003 until March 2021, the ruling party has controlled, on average, only 53% of the coalition. Due to its relative weakness, the ruling party today is compelled to compromise with other factions throughout its term. While many scholars have harshly criticized coalition discipline, such discipline does not prevent Members of Knesset from expressing independent positions. Coalition discipline has only limited effects, as evidenced by the fact that Israeli governments, on average, do not survive more than two years since the state’s founding.

During Israel’s foundational period, the gap between the ruling party and the largest opposition party averaged twenty-eight Knesset members. Recently, this gap has narrowed to an average of ten Knesset members. The duration of caretaker governments in Israel has doubled from approximately 81 days on average to 158 days on average in the most recent period. Caretaker governments are inherently weak, as established by the Weiss Doctrine and its progeny, which hold that caretaker governments must act with restraint unless there is a compelling need for action.

Moreover, the Court’s rulings, in which it intervenes on behalf of the Knesset under the judicial rationale of a strong government and a weak Knesset, are all rooted in factual circumstances where the governments were, in reality, very weak. These include narrow governments, caretaker governments at their weakest point, or governments undergoing severe coalition crises. In effect, the Supreme Court comes to the aid of the Knesset under the theory of a strong government, even when the government is in a state of near-collapse.

Judicial Intervention Blurs the Distinctions Between the Two Branches

Not only is the judicial intervention aimed at restructuring the balance of power between the Knesset and the government within the Knesset unsupported by the nature of Israel’s parliamentary regime, but it also serves to blur the distinctions that nevertheless exist between the legislative and executive branches under a parliamentary system. Judicial intervention is ostensibly conducted in the name of enhancing the separation between the Knesset and the government, but it ultimately undermines the rationale underlying such intervention.

In the Gas Framework Case, the Court invalidated the stability clause that formed part of a government decision, partly because constraining the government’s discretion amounted to constraining the Knesset’s discretion. By doing so, the Court effectively eroded the distinction between the Knesset and the government in a parliamentary system and undermined the logic of rulings that do not settle for government action alone but also require Knesset action.

In the Kwantinsky Case, the Court effectively applied administrative law requirements to the legislative process of the Knesset, particularly the requirement of proper deliberation. The rationale of administrative law is, among other things, that administrative agencies must engage in proper deliberation precisely because they are not elected bodies representing the public by virtue of their membership. Until the Kwantinsky Case, this was precisely the reason that the requirement of proper deliberation was not applied to the Knesset, whose members are directly elected by the public to legislate. The application of administrative law principles to Knesset legislation once again flattens the distinction between the legislative actions of the Knesset and the executive branch’s actions.

In cases dealing with the biennial budget, the Court criticized the enactment of Basic Laws through temporary provisions. It also expressed discomfort with the biennial budget itself, which limits the Knesset’s oversight of the executive branch and the opportunities to topple the government if it fails to garner the support of sixty-one Knesset members. However, enacting problematic legal arrangements via temporary provisions is actually preferable. This method enhances the Knesset’s oversight of the government. The significance of a temporary provision is that its legislative process is identical to that of any other law or Basic Law, but the default is that it expires after a limited and short period. Therefore, those who seek to strengthen the Knesset’s standing vis-à-vis the executive branch should preserve the temporary provision mechanism for substantively problematic arrangements. This, however, does not diminish the Court’s obligation to caution itself that a temporary provision should not automatically signal a reduction in the scope of judicial review merely because it involves a law with an impending expiration date.

Finally, in the Edelstein Case, the Court failed to distinguish between a contingent parliamentary majority and a coalition majority. When it comes to replacing the Speaker of the Knesset—a permanent appointment that cannot be revoked except for conduct unbecoming and only by a supermajority of ninety out of 120 Members of Knesset—it is appropriate that only a coalition majority should appoint the Speaker. Such an approach would avoid constant conflict between the Knesset and the government, which ultimately results in early elections.

The Jurisprudence Has Not Achieved Its Desired Outcomes

None of these rulings have produced the outcomes that either the Court or the public expected. In the Gas Framework Case, the government recommitted to the framework in a slightly softened form that did not fundamentally alter its content. Indeed, there has been no deviation from this framework since its adoption. The Kwantinsky Case has proven to be an unrealistic standard, establishing a threshold for the legislative process that has long been violated. Numerous petitions have been filed seeking to annul legislation based on the *Kwantinsky* precedent, yet none have been successful. In fact, the Basic Law concerning an alternative government or legislation related to the COVID-19 pandemic was enacted more quickly than the Third Apartment Tax Law. Even prior to the enactment of the Third Apartment Tax Law, laws such as the Golan Heights Law and the New Israeli Shekel Law were passed within a single day.

The Biennial Budget Cases led to a formalistic legislative response from the Knesset, undermining the Court’s directives. Already in 2018, a budget for the year 2019 was passed a year in advance. Similarly, in 2021, budgets for both 2021 and 2022 were approved in a single day. The legislature avoided calling these budgets “biennial budgets”; instead, they were framed as two separate annual budgets—“one for this year and one for the next.”

Finally, in the Edelstein Case, the parties who prevailed before the Court became the political losers. Yesh Atid and Labor, who were among the petitioners, succeeded in court but did not ultimately determine the identity of the Knesset Speaker or the composition of the government.

Conclusion

This essay has focused on five landmark rulings issued since 2016, all of which involved the Court accepting petitions and choosing to intervene to strengthen the Knesset at the expense of the government within the Knesset. In none of these cases did the respondents’ conduct violate a law, Basic Law, or the Knesset’s Rules of Procedure. The Court chose to intervene based on the perception that the Knesset requires judicial assistance to contend with the government within a parliamentary system characterized by proportional elections.

This judicial intervention also reflects an increasing willingness by the justices to intervene in the actions of the legislature: from intervening in a government decision (*Gas Framework*), to interfering in the legislative process of a law (*Kwantinsky*), to dictating the timing of an irreversible vote for the Knesset Speaker (*Edelstein*), and even to intervening in the legislative process of a Basic Law (*Biennial Budget Cases*).

This jurisprudence reflects a transformation in the Court’s approach to the Knesset of Israel: from a system of legislative supremacy before the constitutional revolution, to one of constitutional supremacy, to a new paradigm in which the Knesset is perceived as so weak that it requires the Court’s assistance. If the Knesset were indeed as weak as a helpless child in need of a caregiver’s protection, then the intervention of the “caregiver” would not necessarily provide relief.

However, the Knesset is not so powerless. During the tenure of the 36th government, it became evident that the opposition possesses tools to impede the functioning of the government. Suddenly, it was revealed that filibusters could be employed, refusals to coordinate absences during votes could be made, comprehensive opposition to governmental legislation could be asserted, and the Prime Minister could be compelled to attend periodic discussions in the Knesset.

There is indeed a need to provide additional tools to strengthen the opposition in Israel. However, this empowerment must come from the Knesset itself, not through judicial intervention that lacks a statutory or Basic Law foundation and is unsupported by parliamentary logic. Such judicial intervention does not strengthen the Knesset but rather serves to weaken the Court.

Suggested Citation:

Does the Knesset Need the Court’s Help? ICON-S-IL BLOG, August 5, 2022 [Hebrew].