Will there be a constitutional crisis? Second Authority dispute tests judicial authority - analysis

Who are you going to listen to, your mother or your father?

That is a predicament most parents try hard to avoid putting their children in. Nothing good comes from forcing a child to choose between two legitimate sources of authority.

Now, imagine that dilemma on a national scale.

Three and a half years ago, when the debate over judicial reform first erupted, that was largely a theoretical question. On Sunday night, it became a practical one.

The issue is an arcane one that concerns whether the statutory body that regulates Israel’s commercial broadcasters can continue functioning after resignations left it without the quorum normally required by law.

But the Second Authority is merely the venue. The real issue is far broader.

For the first time, the government has taken a step that many legal experts argue amounts to refusing to recognize a binding High Court ruling. On Sunday, it unanimously approved a declaration rejecting the High Court’s decision allowing the Second Authority to continue operating despite lacking the quorum required by law.

The government vigorously disputes that characterization. Cabinet Secretary Yossi Fuchs insisted the cabinet had not called for defying the court, but had merely criticized what it viewed as a legally flawed ruling.

Regardless of whether one accepts the government’s explanation or that of its critics, Sunday’s decision revived the fundamental question at the heart of the judicial overhaul debate: Which branch of the government has the final say when they fundamentally disagree?

First, we should understand how Israel got to this point.

The Second Authority regulates Israel’s commercial television and radio stations. Among its responsibilities is approving significant ownership changes involving commercial broadcasters.

The immediate dispute centers on Channel 13, but the battle over the station began months ago.

It was then that a group of prominent technology entrepreneurs, many identified with the anti-government camp, reached an agreement to purchase the financially struggling broadcaster, a transaction that the government opposed.

At roughly the same time, Communications Minister Shlomo Karhi sought to replace some members of the 15-member Second Authority with new government appointees. The High Court froze those appointments while it considered the petitions challenging them, including claims of conflicts of interest.

Then came a second development.

Several members of the existing council resigned, leaving the body below the two-thirds quorum required by law to make binding decisions, including on the proposed sale.

The government argued that the legal consequence was straightforward: without a quorum, the Authority could not function.

The High Court reached a different conclusion.

It ruled last month that there was sufficient reason to believe the resignations had been orchestrated, or at least encouraged, to paralyze the regulator and prevent it from acting upon the Channel 13 transaction. Under those exceptional circumstances, the justices held, the remaining members could continue operating despite their lack of the statutory quorum.

The court determined that, while the law may require a quorum, the government cannot deliberately create the absence of a quorum and then invoke that very absence to prevent the body from functioning.

That ruling set the stage for Sunday’s unprecedented confrontation.

Supporters of the government’s position argue that judges cannot simply waive statutory requirements enacted by the Knesset because doing so would produce a better outcome. Critics see something very different.

They argue that the government has crossed a red line by effectively declaring that a judicial ruling is no longer binding on the executive branch.

Those are two fundamentally different interpretations of the same event.

Retired Supreme Court justice Hanan Melcer belongs firmly to the latter camp.

Governments have criticized court decisions before, he noted in a KAN Reshet Bet interview on Monday. Politicians criticize judges. Academics criticize judges. Newspapers criticize judges. That is entirely legitimate in a democracy, he said.

What is different this time, he argued, is that the government did not merely express disagreement with the ruling. It effectively declared that it would not recognize it.

For Melcer, that distinction changes everything.

Democracy, he argued, rests not only on elections but also on the acceptance that each branch of government operates within defined boundaries. These are the checks and balances: the legislature legislates, the executive governs, and the judiciary interprets the law. Once the executive decides that the judiciary’s decisions are optional rather than binding, those checks and balances have eroded.

The government rejects that analysis.

Its supporters argue that the real constitutional problem lies elsewhere: in a judiciary that has steadily expanded its authority beyond what the law permits. From their perspective, Sunday’s decision was not an assault on democracy but an attempt to prevent the court from rewriting an explicit provision written in the law requiring a quorum for Second Authority decisions.

That debate over who has the final say has been raging since the judicial overhaul was unveiled more than three years ago.

The difference now is that it is no longer confined to academic seminars, legal journals, or Knesset committee rooms. Now, it’s playing out in real time between the government and the country’s highest court.

Yet something else must also be factored into the equation: the upcoming election.

As dramatic as Sunday’s developments appear, it remains unclear whether Israel is witnessing the opening stages of a constitutional crisis or whether both sides are using a genuine constitutional dispute to mobilize supporters ahead of the coming election campaign.

The coalition has every incentive to demonstrate to right-wing voters that it will no longer acquiesce in what it sees as judicial overreach. And the opposition has every incentive to portray the government as dismantling Israeli democracy. Each side benefits politically from convincing its supporters that the stakes could not be higher.

Whether either side actually intends to force a constitutional showdown – or whether both ultimately expect this dispute to be resolved before the country reaches that point – remains an open question.

One thing, however, is no longer theoretical.