(Mar. 27, 2020) In an unprecedented decision on March 25, 2020, at 8:00 p.m. Israel time, the Supreme Court, by an extended panel of five justices, revoked the powers of the outgoing speaker of the Knesset (Israel’s parliament) and ordered the Knesset to convene the Knesset plenum to elect a permanent speaker. The unanimous decision was given by Court President Esther Hayut. (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.)
The decision was issued in response to the outgoing speaker’s express refusal on March 25, 2020, to schedule a vote on the appointment of a new Knesset speaker for the 23rd Knesset by March 25, 2020, as was required under the Court’s earlier decision of March 23, 2020. (First decision in 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.) Stating that he would not schedule the vote, the speaker further announced his resignation.
The petitioners alleged that by refusing to schedule the election of a permanent speaker, the outgoing speaker violated the Court’s order, and therefore his authority should have been revoked without delay to enable compliance with the Court’s order. They further requested that the most senior Knesset member be appointed as acting speaker until the election of a permanent speaker. (HC 2144/20 para. 3.)
Under Basic Law: The Knesset, “[w]hen the post of … [the speaker] of the Knesset has fallen vacant – because the Chairman has resigned or has died or because the House Committee has decided that for reasons of health he is permanently unable to carry out his functions – a Vice-Chairman shall serve as Interim Chairman until the Knesset elects a new Chairman.”
In accordance with section 5(a)(2) of the Knesset’s internal rules, the speaker’s resignation takes effect 48 hours after its submission unless the speaker withdraws the resignation. If this provision were to apply in the current case, the outgoing speaker’s resignation would have effectively delayed the Knesset plenum’s ability to elect a permanent speaker by up to four days because the Knesset does not normally convene on Thursdays.
The Court determined that the outgoing speaker had violated the Court’s order of March 23. It held that
[r]espect for the rule of law is the foundation of any democratic regime, and it is demonstrated, inter alia, by compliance with decisions and judicial orders. This duty of compliance rests with the entire public, and government authorities are also not exempt from it. On the contrary, these authorities have a magnified duty to comply with decisions and judicial orders, and Israeli law … has adopted the prevailing approach in the common law that attributes presumption of fairness to government authorities. The assumption on which this presumption is based is that a judgment made against the state will be fully complied with. (Para. 4.)
Noting that in the past there have been cases where government authorities delayed implementation of court decisions, the Court stated that never before in the history of the State of Israel has a government official expressly and defiantly refused to uphold a judicial order by saying that his conscience did not allow him to uphold the verdict.
In the opinion of the Court, the defiance of the Court’s order by the speaker, an unelected official who held office temporarily in accordance with § 37 of Basic Law: The Knesset until the convening of the new Knesset, caused immeasurable harm to the public interest in securing the rule of law and upholding judgments and orders. If that is how a person of authority acts, why, the Court questioned, should a regular citizen act differently, adding that this question resonates to the fullest during the COVID-19 outbreak when the Israeli public is ordered to adhere to unprecedented orders and restrictions imposed under emergency regulations.
Considering the unprecedented harm to the rule of law, the Court held that unprecedented measures were required. According to a statement by the Knesset Legal Adviser, the law and the Knesset internal rules were silent on a situation like the current case, where the acting speaker resigned and there was no deputy speaker to take his place. He therefore suggested that the Court use its authority under section 15 of Basic Law: the Judiciary to ensure enforcement of the Court’s judgement of March 23, 2020. According to a framework proposed by the Knesset Legal Adviser, the Court would order the Knesset Arrangement Committee to schedule the convening of the Knesset plenum for Thursday, March 26, 2020, a day on which the Knesset does not normally meet, and include election of a permanent speaker on its agenda. The Knesset Legal Adviser noted that Amir Peretz, the most senior Knesset member, had consented to implement the framework proposed.
On the basis of the parties’ agreement, the Court ordered the implementation of the Knesset Legal Adviser’s framework. The Court specified that its order would be effective even if the outgoing speaker withdrew his resignation. (Para. 5 & 7.)