Judicial Intervention in Parliamentary Affairs to Prevent a Coup d'état

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After Israel’s 2020 parliamentary elections and before a new government formed, the Israeli Supreme Court forced Yuli Edelstein, then the Speaker of the Israeli Legislature (Knesset), to allow for a Knesset vote to elect his successor. The Court cited my work on caretaker/lameduck representative institutions, which highlighted their democratic deficit and agency problem, to explain the urgency of its intervention. However, I critiqued the Court’s Edelstein decision, because its intervention in intra-parliamentary affairs was not strategic, irreversible until the next elections and undermined Israel’s parliamentary system. The Court cited this essay, when it recently chose to refrain from another intervention in the Knesset’s internal affairs, this time regarding the composition of Knesset committees.

In the same essay, I also refuted the prevailing judicial and academic approach that, in recent years, the power balance between the Knesset and the government has shifted, with the government overtaking the Knesset’s functions. In fact, I showed that in many respects the government has been weakening.

In March 2020, the Israeli Supreme Court ordered the Speaker of the Legislature (Knesset), Yuli Edelstein, to hold a vote on his replacement within 48 hours. For the first time in the country’s history, and in an unprecedented ruling in comparative terms, the Court intervened in the Knesset’s internal affairs by scheduling a date for a vote, thus shaping the vote’s outcome and creating an irrevocable political reality. Under Israeli law, once a Speaker is elected, she cannot be removed before the next general elections except for cause and with the support of 75% of Members of Knesset (MKs). Never before had a Knesset Speaker resigned in protest while refusing to uphold a court order. Every governmental branch viewed the other as damaging the core principles of democracy and attempting a coup d’etat. With whom is the law? 

This Article argues that contrary to many scholars’ analysis, the need to strengthen the Knesset at the expense of the government in a parliamentary system cannot justify the Edelstein ruling. The ruling’s canonization needs to center on the Court’s perception that judicial intervention was urgently needed to enable an orderly transition of power from one government to its successor. However, the Article shows that the law, the Knesset’s practice, judicial precedents and the parliamentary nature of the Israeli system, all supported Edelstein’s position in a manner that should have prevented judicial intervention. Unbeknownst to the Court, the petitioners enjoyed a majority to replace the Speaker but not to form a government that enjoys the confidence of the Knesset. They sought to overtake the Knesset in the hope of passing controversial retroactive personal legislation that would make the formation of a new government possible. Further, the Article is the first to argue in the comparative field that when courts intervene in intra-parliamentary affairs, they should limit their remedies to the use of declaratory relief. It argues that courts are not authorized to grant injunctions while meddling with intra-parliamentary procedures, since disobeying these injunctions will expose members of parliament to contempt of court, thus deeply undermining the substantive parliamentary immunity that MPs enjoy.

Suggested citation:

Judicial Intervention in Parliamentary Affairs to Prevent a Coup d'état, 81 Maryland Law Review 297, 297-319 (2021).