The Yuli Edelstein Decision and the History of the Balance of Power between the Knesset and the Government in Israel

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The Edelstein precedent sent shockwaves through the foundations of Israeli democracy. For the first time in the country’s history, the Supreme Court intervened in determining the timing of a parliamentary vote, thereby creating an irreversible political reality. For the first time, the Speaker of the Knesset resigned in protest while refusing to comply with a judicial order. Each branch of government perceived the actions of the other as fundamentally undermining core democratic principles.

The Supreme Court held that the Speaker’s refusal to hold a vote on his own replacement, despite a majority of Knesset members demanding such a vote, constituted a severe infringement on the fabric of parliamentary life. Conversely, the Speaker of the Knesset maintained that his actions were guided by statesmanship and aimed at preventing a “Second Altalena” through his resignation.

Who, then, is in the right?

This article aims to contribute to the discourse in several ways:

1. Empirical Evidence of Weakened Government Control Over the Knesset: It demonstrates empirically that government control over the Knesset has weakened throughout the state’s history across various dimensions. Therefore, basing judicial intervention in Knesset-government relations on a thesis suggesting recent parliamentary weakening requires caution.

2. Judicial Intervention Cannot Justify the Edelstein Precedent: The necessity of strengthening the Knesset at the expense of the government cannot justify the Edelstein precedent. Canonization of this precedent should instead focus on the urgency perceived by the Court in intervening to ensure orderly governmental transitions in Israel.

3. Support for Edelstein’s Position: The article argues that statutory law, parliamentary custom, legal precedents, and the nature of the parliamentary system itself support Edelstein’s position and justify a lack of judicial intervention.

4. Avoiding Judicial Politicization and Political Judicialization: The article posits that the dangers of judicial politicization and political judicialization could have been avoided had the Court limited itself to declaratory relief. Furthermore, although Knesset Speakers have previously refrained from complying with judicial decisions, clashes between the branches were avoided because the Court, for strategic reasons, limited itself to declaratory relief.

5. The Court’s Limits in Issuing Orders: Finally, the article asserts that the Court should not issue mandatory orders when intervening in internal parliamentary proceedings, as doing so directly conflicts with the substantive immunity granted to Knesset members.

Suggested citation:

The Yuli Edelstein Decision and the History of the Balance of Power between the Knesset and the Government in Israel,44   Tel-Aviv University Law Review 321, 321-362 (2021) [Hebrew].