Constitutional Crisis – Definitions, Precedents, Implications
Recently, Israel has faced a number of situations that could lead to a constitutional crisis. What is a constitutional crisis and why is it dangerous for the stability of democracy? IDI experts explain.
Currently, the State of Israel faces a situation that could lead to a constitutional crisis. Amid the turmoil of events and developments, the government and some of its ministers have repeatedly refused to comply with the Attorney General's (AG) opinion. This defiance comes despite recent court rulings which unanimously reaffirm that the AG's legal opinions are the authoritative interpretation of the law and are binding on the government, unless the court rules otherwise.[1] Moreover, ministers and Members of Knesset are threatening or "advocating" for the defiance of court rulings and judicial decisions.
For example, the Supreme Court recently issued its ruling on the case demanding that the Minister of Justice allow the Judicial Selection Committee to appoint a President of the Supreme Court. The court accepted the petition and ordered that the names of the candidates for President be published within 14 days and following the legally mandated period, the Committee should convene to select the President.[2] The Minister of Justice responded critically, claiming that the ruling contradicts the law and that the elected president would be illegitimate.
While the Minister has since partially complied with the court’s ruling, many within the government had urged him not to comply with the ruling.[3]. A refusal by any minister to comply with court rulings raises the issue of a constitutional crisis.
A constitutional crisis is a distinct and rare situation in which the constitutional framework is breached, and the foundational rules regulating governmental and political activity are violated. An example of such a crisis occurs when parliament, its speaker, a parliamentary committee chairperson, a government, a minister, or a director-general of a ministry acts contrary to the law and in defiance of explicit judicial orders. In such situations, the most basic rules are violated, and disagreements are resolved outside democratic processes, potentially leading to widespread violence, civil unrest, civil war or a slide into an autocracy.
According to this narrow definition, not every violation of the law by the Knesset, the government, or bodies under its authority constitutes a constitutional crisis. The constitutional framework in Israel (and other democracies) has accounted for the concern that a governing authority may fail to abide by the law, which is why it includes corrective mechanisms such as judicial review. A constitutional crisis arises only when, in addition to violating the law, the most basic procedures for resolving disputes are rejected. The combination of a violation of a constitutional norm and the rejection of corrective mechanisms (such as dispute resolution through the authorized judicial institution) constitutes a denial of a binding constitutional framework.[4] Therefore, a conscious, persistent, and public refusal to uphold a judicial decision represents a clear case of a constitutional crisis – perhaps even the most paradigmatic one.[5] Nonacceptance of this nature undermines fundamental democratic principles, such as the rule of law and the separation of powers.
However, a constitutional crisis could arise in other circumstances as well, for example: when a certain territory or group of people announces its secession from the state and takes practical steps toward that end; when massive violent clashes erupt in the streets; when there are extensive and ongoing armed conflicts within the state; and when armed forces act physically to replace the government or parliament.
In recent decades, constitutional crises in countries with history of democratic governance have erupted due to fundamental changes in the regime's nature and constitutional order, or attempts to instigate such changes.[6] However, even during periods of profound constitutional or regime change, constitutional crises in Western democracies remain uncommon. More often than not, the tangible danger of a constitutional crisis ultimately ends without a full-blown crisis.
Thus, examples exist of 'near-crises' – situations in which the government declared it would not comply with a judicial decision that did not align with its policy, but eventually, the crisis was avoided when the government complied with the court ruling.
In Colombia, for example, incumbent President Uribe sought to change the legal limitation on presidential terms, enabling him to run for additional terms. Initially, the constitution was amended to enable Uribe to run for a second term. After his reelection, Uribe pushed for a further constitutional amendment that would allow him to run for a third term. The Constitutional Court of Colombia prevented the holding of a referendum to amend the constitution again to permit the president to run for a third term. Many feared that the incumbent president would defy the court's ruling to run for a third term, leading to a constitutional crisis in the country; however, he ultimately complied with the Constitutional Court's decision.
In the United States in 1974, the Supreme Court ordered President Nixon to hand over White House tapes related to the Watergate scandal to the special prosecutor appointed for the case. There was concern that Nixon might refuse to comply with the judicial decision. However, he ultimately handed over the tapes and subsequently resigned, thereby avoiding a constitutional crisis.[7]
Another example from the United States occurred on January 6, 2021, when a crowd supporting outgoing President Donald Trump stormed the Capitol in an attempt to overturn the results of the U.S. presidential election, in which Trump lost to the Democratic candidate Joe Biden. The violent assault occurred after a speech by Trump, during which he stated that he would not accept the election results and encouraged his supporters to march to the Capitol. This attempt to disrupt the constitutionally governed transfer of power did not escalate into a full-blown constitutional crisis, as the electoral count and certification went through, despite various attempts to prevent and interfere with it.[8]
In recent times, against the backdrop of efforts to fundamentally change the regime, constitution, and legal system in the country (known as the "judicial reforms"), fears of constitutional crises have emerged in Israel as well. These concerns arose, among others, in the following cases:
- The Minister of Finance's directive to continue subsidizing daycare centers despite the stance of the Office of the Attorney General. Recently, the Attorney General’s office clarified to the Minister of Labor that, under the current legal framework and in light of the military conscription ruling (which found that since there is no law granting service exemption, the state must act to draft yeshiva students into the IDF), the state is not authorized to continue providing financial support for ultra-Orthodox conscription evaders to cover daycare fees.[9] Despite the office of the Attorney General clarifying the action's illegality, the Minister of Finance ordered the continuation of subsidies for daycare centers.[10]
- The Minister of National Security's rejection of the Attorney General's decision on the illegality of indicted police officer Meir Suissa's appointment. The Deputy Attorney General determined that the promotion of Superintendent Suissa in rank, and his appointment as the commander of the police station in South Tel Aviv constitute 'grave conduct that is against the law and harms the rule of law.' Furthermore, allowing Superintendent Suissa to assume the position of Chief Superintendent stands 'contrary to the law with all its implications’.[11] Despite this, Minister Ben Gvir insisted on this allegedly illegal appointment, and Suissa was even seen wearing the rank of Chief Superintendent.[12]
- The government's rejection of the Attorney General's formal opinion on the procedure for appointing the next Civil Service Commissioner. The Attorney General clarified to the Prime Minister that the commissioner should be selected by a search committee headed by a retired Supreme Court judge.[13] However, the government approved a resolution to appoint the Civil Service Commissioner in an allegedly illegal manner, a proposal that the Attorney General explicitly stated had a legal impediment to its approval.[14]
Unlike the above examples of potential constitutional crises that ultimately failed to materialize, real constitutional crises have occurred around the world. In the past few decades, these crises have tended to erupt against the backdrop of far-reaching processes of fundamental change in the nature of the regime and the constitutional order; however, they can break out under other circumstances as well. Sometimes they stem from the authorities' non-compliance with a court decision; in other cases, they arise from a different kind of clash between the state authorities or between the federal government and the local government."
For example, in Spain in 2017, the local parliament in Catalonia passed legislation to hold a binding referendum on granting independence to the region. The Constitutional Court of Spain then issued an interim order prohibiting the referendum and subsequently ruled the legislation unconstitutional and void. The Spanish government threatened to suspend Catalonia's autonomy and to utilize the Spanish army to prevent the referendum. The Constitutional Court even threatened to impose daily fines on those involved in executing the referendum. Despite this, the referendum was carried out, with 90% of the modest number that participated voting in favor of Catalonian independence. This move sparked a constitutional crisis in the country, dragging Spain into a prolonged political and social crisis, with large-scale demonstrations both for and against granting the region independence, which at times escalated into violence. In addition, the Spanish Senate suspended Catalan autonomy, and Catalonian leaders were subsequently prosecuted for their involvement in the referendum, with some even sentenced to prison.[15]
In Poland, with the rise of the 'Law and Justice' party to power in 2015, the party launched a series of moves to undermine the foundations of democracy in the country: weakening the rule of law, the separation of powers, the independence of the judiciary, free media, and the fairness of elections. As part of these moves, shortly after coming to power, the party decided to appoint five judges to the Constitutional Court. This was after the outgoing parliament had already appointed five judges to the same positions. Two of the new appointments were disqualified by the Court, which ruled that the legal basis for their selection was unconstitutional. The President of the Constitutional Court refused to allow the judges whose appointments were disqualified to participate in the Court’s proceedings. Additionally, three judges appointed by the previous parliament were not sworn in by the President as required by the constitution, preventing them from participating in the Constitutional Court's legal proceedings. Following this, the lower house of parliament introduced several amendments to the Constitutional Court Law, and increased the number of judges required to sit in most cases from 9 to 13 (out of the 15 judges in the Constitutional Court). The Constitutional Court invalidated these amendments, but it did so with a panel of 12 judges, and as a result, the government refused to recognize the ruling as binding or to publish it. This refusal to comply with the ruling was, as mentioned, one of the first steps in undermining the independence of the judiciary.[16]
In a democratic country, all are subject to the law, including the executive authority and the ministers in charge of the various ministries. The court's core functions are interpreting the law and resolving disputes. A government that does not obey a ruling or a judicial decision is a government that does not obey the law. This constitutes a fundamental violation of the foundational principles of democracy: the rule of law, which stresses that everyone is subject to the law, as well as the principles of separation of powers and the checks and balances within the democratic system. A constitutional crisis, in many ways, can lead to anarchy. It creates a situation where it is unclear what norms must be followed and which institution holds the authority to enforce them. Once a precedent is set, especially by the government, the path to widespread disobedience of the law by public servants, police officers, soldiers, and many citizens – leading to anarchy, a significant rise in crime, and violence – becomes very short.
As stated, we assume and hope that the State of Israel will not reach a situation in which the government or one of its ministers openly and explicitly refuses to comply with court rulings.
First, it should be stressed that a constitutional crisis involving a violation of a court ruling is not created by the court, which acts in line with democratic values and fulfills its constitutional and democratic role by issuing rulings. Second, the court alone does not have the appropriate tools to resolve such a constitutional crisis on its own. Resolving this type of crisis requires the involvement of political, administrative, and public entities. Generally, it is the responsibility of all these entities to ensure the implementation of court rulings. Each relevant administrative body is also obligated to comply with court rulings and strive for their enforcement.
However, the court itself has various tools to deal with non-compliance with a ruling, either through orders under the Contempt of Court Ordinance,[17] designed to enforce a ruling, or through special orders. Such a case, in which a senior government official refused to comply with a Supreme Court ruling – albeit while resigning from their position – occurred in March 2020, in the Edelstein case. The ruling concerned the elections for the 23rd Knesset. After the new Knesset was sworn in, a majority of the Knesset members (61 members) approached the temporary Speaker of the Knesset (who, according to the Basic Law, was the Speaker of the outgoing Knesset, MK Yuli Edelstein) to convene the plenum to elect a permanent Speaker for the new Knesset. However, he refused to do so. In a petition to the High Court of Justice, the court ruled that this refusal "undermines the foundations of the democratic process" and ordered him to convene the Knesset to elect a permanent Speaker without delay.[18] Nevertheless, Edelstein refused to comply with the ruling and resigned from his position.
Additional petitions were submitted to the Supreme Court to enforce the ruling through the Contempt of Court Ordinance and other remedies. In its ruling, the Court stated that "respect for the rule of law is the cornerstone of every democratic regime, and it is proven, inter alia, by obeying judicial decisions and orders. This duty to comply is imposed upon the entire population, and the organs of government are not exempt. On the contrary, these authorities have a far greater duty to obey judicial decisions and orders." The court noted, in an unusual manner, that:
"Never before in the history of the state has a government authority openly and defiantly refused to comply with a judicial order, claiming that their conscience does not permit them to obey the judgment…The harm caused by this conduct to the public interest in upholding the rule of law and executing court judgments and orders is of the utmost severity. If this is how those in power behave, why would the ordinary citizen act differently?"
The unprecedented situation also led to a highly exceptional remedy: the court exercised its broad authority under Section 15 of the Basic Law: The Judiciary, and in order to ensure the enforcement of its ruling, granted the most senior member of Knesset the authority to convene the Knesset plenum and conduct the session for electing a new Speaker, despite this authority originally being vested in the outgoing Speaker of the Knesset, MK Edelstein.
Although it was possible to wait for Edelstein's resignation to take effect within 48 hours, the Court conveyed a clear message of its commitment to confront the severity of non-compliance with a court's order. It set an important precedent by enforcing its ruling through the temporary transfer of authority to another functionary.
The exceptional remedy granted by the court in the Edelstein case succeeded in protecting Israeli democracy, while narrowly avoiding the dangerous development of a constitutional crisis. At present, especially given the dramatic moves of the government’s so-called judicial overhaul of 2023, and with Israel being at war, the sole legal, proper, and necessary way to avoid a constitutional crisis and its potentially devastating consequences is to uphold the law and diligently comply with court rulings and judicial decisions.
[1]See, for example: HCJ 6198/23 Movement for Quality Government in Israel v. Minister of Defense (25.6.2024).
[2]HCJ 1711/24 The Movement for Quality Government in Israel v. The Minister of Justice (8.9.2024).
[3] "Calls within the government: Do not comply with the Supreme Court, go back to advancing the reform", N12, September 8, 2024.
[4] See and compare: Michael J. Gerhardt, Crisis and Constitutionalism, 63 Mont. L. Rev 277 (2002).
[5] See, for example: Jack M. Balkin. The Cycles of Constitutional Time 38-39 (2020).
[6] Not every constitutional crisis is necessarily an immediate threat of transition from a democratic regime to another form of government. See: Keith E. Whittington, Yet Another Constitutional Crisis?, 43 William & Mary L. Rev. 2093, 2100 (2002).
[7] See: Levinson & Balkin, supra note 4, p. 742.
[8] Tanner Stening, What is a constitutional crisis? With Trump waiting in the wings, could we be heading toward one?, NORTHEATERN GLOBAL NEWS (7.5.2024), https://news.northeastern.edu/2024/05/07/constitutional-crisis/.
[9] A letter from the Deputy Attorney General (Public-Administrative Law), Dr. Gil Limon, to the Minister of Labor, Yoav Ben Tzur, regarding 'Ministry of Labor support for ultra-Orthodox conscription candidates for payment of tuition in daycare or family daycare centers following the ruling in HCJ 6198/23 The Movement for Quality Government in Israel v. The Minister of Defense' (August 11, 2024).
[10] A letter from the Minister of Finance, Bezalel Smotrich, to the Deputy Attorney General (Public-Administrative Law), Dr. Gil Limon, and the Legal Advisor to the Ministry of Finance, Attorney Assi Messing, regarding 'Dramatic Harm to Economic Policy Through Lack of Authority' (August 15, 2024)."
[11] Letter from the Deputy Attorney General (Public-Administrative Law), Adv. Dr. Gil Limon, to the Legal Advisor to the Ministry of National Security, Adv. Ariel Siesel, and the Legal Advisor to the Israel Police, Assistant Commissioner Elazar Kahana, regarding 'The Appointment of Superintendent Meir Suisa as Commander of the South Tel Aviv Police Station' (25.8.2024).
[12] Letter from the Minister of National Security, Itamar Ben-Gvir, to the Attorney General, Adv. Gali Baharav-Miara, regarding 'The Appointment of Superintendent Meir Suisa to the Rank of Chief Superintendent and Commander of the South Tel Aviv Station' (26.8.2024); Moshe Steinmetz, 'Ignoring the Attorney General’s Directive: Meir Suisa Wearing the Rank of Chief Superintendent,' Kan (1.9.2024).
[13] Letter from the Attorney General, Adv. Gali Baharav-Miara, to the Prime Minister, Benjamin Netanyahu, regarding 'The Process of Appointing the Civil Service Commissioner' (19.6.2024).
[14] Government Resolution 2129 dated 11.8.2024; Asaf Shapira and Rita Goldstein-Galperin, "Opinion: The Government's Proposal to Appoint a Civil Service Commissioner Subject to the Examination of the Advisory Committee for Appointments Will Not Ensure the Appointment of a Professional and Suitable Commissioner" (The Israel Democracy Institute, 11.8.2024).
[15] Klaus-Jurgen Nagel, Catalonia and Spain’s Constitutional Crisis: Time for a Federal Solution?, 50 SHADES OF FEDERALISM (2020), http://50shadesoffederalism.com/case-studies/catalonia-and-spains-constitutional-crisis-time-for-a-federal-solution/.
[16] Dafni Benbenisti, "How the Change in the Judicial Appointment Mechanism Heralded the Shift in the Democratic Regime in Poland and Hungary" (The Israel Democracy Institute, 2023); Marcin Wiacek, Constitutional Crisis in Poland 2015-2016 in the Light of the Rule of Law Principle, in DEFENDING CHECKS AND BALANCES IN EU MEMBER STATES (2021).
[17] According to the Contempt of Court Ordinance (a mandate-era legislation amended by the Knesset), the court is authorized to enforce compliance with its ruling on the violator through various means, including fines and imprisonment.
[18]HCJ 2144/20 Movement for Quality Government in Israel v. Speaker of the Knesset (March 23, 2020).