The Canonization of the Yuli Edelstein Decision and Judicial Intervention in Parliamentary Proceedings

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The Edelstein Ruling and the Balance of Power Between Parliament and the Judiciary

The Edelstein ruling is one of the most significant and dramatic decisions ever issued by the Israeli Supreme Court. It was handed down during the COVID-19 pandemic, following Israel’s third round of elections within a single year. The decision came amid a national emergency that profoundly impacted Israel’s political, economic, health, and social spheres, severely disrupting ordinary governance. On Thursday, March 19, 2020, factions of the 23rd Knesset belonging to the so-called “Bloc of 61,” which sought to replace the transitional Prime Minister Benjamin Netanyahu, petitioned the Court. The hearing was held on the first available business day, and the decision was delivered within 24 hours. In its judgment, the Court ordered Knesset Speaker Yuli Edelstein to hold a vote on his replacement within 48 hours.

Edelstein delayed compliance until nearly the final moment, ultimately announcing from the Knesset podium his resignation, citing his conscience as preventing him from executing the Court’s order. Because the resignation took effect only after a legal waiting period, the extra time Edelstein “bought” for Netanyahu allowed the formation of the unity government to materialize. Thus, the victors in court became the political losers.

This decision brought tensions between the judiciary and the elected branches to a climax. Edelstein viewed his resignation as an act that averted civil unrest or even bloodshed—what he termed a potential “second Altalena.” From his perspective, judicial intervention constituted a grave infringement on the law, on justice, and a crude trampling of the Knesset’s institutional independence. In contrast, the Court justified its intervention as necessary to protect the foundational principles of the rule of law and democratic governance. Which side is correct?

In my forthcoming article, “The Edelstein Ruling and the Chronology of Institutional Power Between the Knesset and Government in Israel,” I argue that the Court’s intervention in the internal parliamentary procedure in Edelstein was unprecedented. The Knesset’s Rules of Procedure, prior case law, and parliamentary customs all supported Edelstein’s position. Given the exceptional nature of the ruling, I explore several potential rationales that may justify it, and propose that any doctrinal elevation of Edelstein should focus on the need to secure orderly transitions of political power in Israel. Once the Court opted to intervene in internal parliamentary affairs, I argue that it should have limited itself to issuing a declaratory judgment.

Why Was the Judicial Intervention in the Speaker’s Replacement So Extraordinary?

My analysis does not dispute the Court’s authority to review internal parliamentary procedures. The petition concerning Edelstein was undoubtedly important. Indeed, under the shadow of the petition, the Knesset resumed functioning, and the Arrangements Committee—which is tasked with establishing the various Knesset committees—was convened without judicial involvement. The Arrangements Committee also temporarily substitutes for the House Committee with respect to parliamentary procedure and agenda-setting until the latter is formally established. However, by combining two issues into one petition—the non-convening of the Arrangements Committee and the failure to vote on replacing the Speaker—the petition conveyed an impression of institutional paralysis, which contributed to the Court’s sense that intervention was necessary. Yet even if no vote on the Speaker’s replacement had yet occurred, the Knesset had become operational once the Arrangements Committee was established and the process of forming other committees had begun.

The difficulty with dictating the timing of a Speaker’s replacement stems from the fact that the Basic Law: The Knesset makes the position of the Speaker effectively irremovable. In the absence of an election, the law provides that a Speaker may only be removed with the support of 90 Knesset members and only on the grounds of conduct unbecoming of the office. This legal context received no meaningful weight in the Court’s decision. Given the entrenched nature of the Speaker’s position, it is essential—under a parliamentary system—that the Speaker reflect the majority coalition. Although the Court intervened to protect the core principles of parliamentary governance, it notably refrained from analyzing the substantive logic of the parliamentary model.

Parliamentary systems are designed to align the political composition of the legislature and the executive. They establish a structural interdependence such that, for example, a failure to pass the budget or a vote of no confidence brings down the government. In this system, the Court should avoid judicial intervention that creates discord between the legislative and executive branches, particularly because such interventions tend to accelerate the collapse of government and trigger elections. Unsurprisingly, throughout Israel’s parliamentary history, the permanent Speaker has always been selected from within the governing coalition. Yet the justices in Edelstein embraced a different outlook. Some even perceived value in a Speaker who stands in political opposition to the sitting government.

Judicial Intervention and the Limits of Justiciability in the Edelstein Ruling

The parliamentary character of Israel’s constitutional structure and the need to maintain harmony between the Knesset and the government underpin the Knesset Rules of Procedure, which explicitly allow for the election of a new Knesset Speaker up until a government is formed. Until that point, according to the Basic Law: The Knesset, the outgoing Speaker continues to serve as interim Speaker. Where the identity of the governing coalition is unclear, it is both possible and indeed appropriate to delay the election of the Knesset Speaker. Intervening in the timing of such an election, while disregarding the statutory rule regarding the Speaker’s irremovability, reflects selective enforcement. Just as the Court should not rewrite the rule governing the permanence of the Speaker's appointment, it should not rewrite the rule that permits the previous Speaker to continue in office until a permanent replacement is elected. Judicial intervention in the appointment of officeholders must account for the legal framework governing their removal.

Moreover, precedent was on Edelstein’s side: until this case, the Court had never intervened in the timing of a Knesset vote, even when the timing bore directly on the formation of a government or even when Knesset rules were violated—which was not the case in Edelstein. In my article, I also review the historical record of all Speaker elections since the establishment of the State of Israel and show that, in the absence of political consensus, the Knesset has consistently delayed the election of the Speaker until a government is formed.

Why, then, did the Court intervene in Edelstein?

Given the considerable arguments against judicial intervention in Edelstein, the question arises: why did the Court choose to intervene? The Court appears to have offered two implicit justifications. The first concerns a desire to strengthen the Knesset in its relationship with the executive, given the perceived decline in its institutional power. As I demonstrate in my article, however, “numbers speak”—and they tell a different story. Based on measurable indicators of institutional balance—such as coalition size, the dominance of the ruling party within the coalition, the gap between the ruling party and the largest opposition party, the average tenure of caretaker governments, and the success of private members’ bills—the Knesset has in fact grown stronger relative to the government over time.

In my view, this justification does not warrant judicial intervention in irreversible internal parliamentary processes, particularly prior to a clear determination of the balance of power between coalition and opposition. In a parliamentary system, it is essential for the executive to control the Speaker, who determines the legislative agenda. It is entirely permissible for the Speaker to consider political factors in managing parliamentary time. Granting the position of Speaker to a member of the opposition effectively guarantees the imminence of new elections—an outcome the system is designed to avoid.

The Court’s second rationale was implicit and articulated only obliquely: the need to ensure an orderly transition of power. The Court sought to prevent a scenario in which Edelstein personally blocked a peaceful transfer of power. I argue that any doctrinal elevation of Edelstein should focus on this rationale. In a heroic gesture, the Court sought to avert the risk of Israel descending into a situation analogous to the attempted disruption of the transition of power in the United States on January 6, 2021.

Yet herein lies the difficulty: the petitioners did not seek to reflect an ongoing transfer of power, but to make such a transfer politically viable. Their aim was to seize control of the Knesset in order to enact “controversial legislation”—a term used by the Court itself—namely, a proposed statute disqualifying an individual under criminal indictment from forming a government. The petitioners hoped that, by altering the rules of the game, political conditions would arise that would enable a change in government. Had they stated explicitly that they held a majority in the Knesset but not in the government, it is doubtful the Court would have granted relief—and rightly so, as this would risk politicizing the judiciary by allowing it to be used as a tool in political maneuvering over the formation of a government. In hindsight, of course, all is clear, but it is doubtful whether the justices were aware of the broader implications at the time.

Why the Court Should Have Issued a Declaratory Judgment

Once the Court opted to intervene, it should have confined itself to issuing a declaratory judgment. One reason is strategic: the judiciary is a relatively weak institution. As the U.S. Founding Fathers famously noted, it possesses neither sword nor purse and relies on public trust. While Chief Justice Hayut declared that no public official had ever openly defied a court order, I demonstrate in my article that the Speaker of the Knesset previously disregarded a ruling by Justice Barak in the Kahane case requiring the tabling of racist legislative proposals. When Kahane returned to court to compel compliance, Barak explained that the Court had issued only a declaratory judgment, not a mandatory order. He further emphasized that while both remedies carry a duty of compliance, only noncompliance with a mandatory order constitutes contempt of court. Anticipating the institutional sensitivities surrounding judicial intervention in internal parliamentary affairs, Barak deliberately refrained from issuing coercive relief.

A declaratory judgment more appropriately reflects the idea that the Court may serve as a reinforcing—but not substitutive—actor in democratic processes. It would have reduced the risk of politicizing the judiciary and judicializing politics. It would also have empowered political actors to act, while providing them the breathing space necessary to exhaust political options.

Another reason I raise in my article is that the Court should not issue a coercive order that cannot be meaningfully enforced. The Edelstein case is unlike prior cases involving parliamentary immunity, where the issue was a clear legal violation distinct from the exercise of legislative discretion—such as the disclosure of classified information or acts of bribery or fraud. In Edelstein, the alleged illegality arose entirely from a judicial disagreement over how to exercise parliamentary discretion. Coercive enforcement in such a case is unwarranted because the Speaker’s discretion was protected by substantive parliamentary immunity. The justices ultimately recognized this immunity in rejecting the motion for contempt, but they should have accounted for it at the original stage of judgment.

Epilogue

The Edelstein ruling illustrates the need to amend the existing legal framework. The 2016 amendment to Basic Law: The Knesset, which grants the outgoing Speaker of the Knesset control over the new Knesset until a permanent Speaker is elected, is normatively undesirable. This amendment stems from a 2015 bill to amend the Basic Law, which aimed to align the status of the Knesset Speaker with that of a caretaker government for purposes of continuity. However, the amendment effectively vests an outgoing Speaker—who lacks democratic legitimacy beyond that conferred by the rules of continuity—with control over the parliamentary agenda of an incoming legislature. This creates a risk of abuse of institutional power when the outgoing Speaker exercises parliamentary discretion.

Such a legal correction should be introduced by the constitutional legislator—not by the judiciary—through intervention in internal parliamentary proceedings. Control over such procedures is a cornerstone of the Knesset’s institutional independence. It would be preferable to return to the previous arrangement, under which the most senior Member of Knesset serves as interim Speaker until the election of a permanent one. This alternative better reflects the temporary nature of the mandate entrusted to the senior member, and acknowledges that elections have taken place and the composition of the Knesset has changed.

Nothing in my article is intended to justify the conduct of then-Speaker Edelstein. A public official whose conscience prevents compliance with a judicial order regarding the performance of their official duties is expected to resign, thereby allowing their successor to carry out the order. It is inappropriate for a public official to undermine the authority of the judiciary by acting in a manner that ensures the failure of a judicial ruling, even if they believe the law is on their side. Edelstein’s resignation was timed and structured in a way that sought to frustrate implementation of the Court’s decision.

A repetition of the Edelstein scenario must be avoided. Such events gravely undermine the authority of the judiciary, the stature of the Knesset, and the integrity of Israel’s parliamentary system.

Suggested Citation:

The Canonization of the Yuli Edelstein Decision and Judicial Intervention in Parliamentary Proceedings, ICON-S-IL Blog, April 12, 2021 [Hebrew].