In first, government vows to disobey High Court ruling, setting up constitutional crisis

Cabinet declares ruling allowing a key broadcast media regulator to operate without a quorum to be ‘unlawful’; opposition accuses government of ‘violating rule of law’

For the first time in Israel’s history, the government openly declared on Sunday that it will not respect a High Court of Justice ruling, escalating its feud with the judiciary to constitutional crisis levels.

In a declaration issued by the cabinet, the government vowed not to respect the High Court’s decision in June to enable the Council of the Second Authority commercial broadcasting regulatory body to resume operations despite lacking a two-thirds quorum of members.

In the resolution proposed by Communications Minister Shlomo Karhi and Justice Minister Yariv Levin, the government stated that it would not recognize any decisions made by the council in its current status.

The fight over the membership of the Second Authority centers around a proposed buyout of Channel 13 by a group of high-tech entrepreneurs, headed by a prominent critic of the government, which the council must approve.

Organizations that petitioned the High Court against the government, including the Union of Journalists in Israel and the Movement for Quality Government, allege that Karhi and the government have tried to assert political control over the council to thwart the buyout.

The court itself, in an interim order in June, all but accused Karhi of unlawfully exerting influence over the council in order to thwart its operations, and by extension, the approval of Channel 13’s acquisition.

“Today, the government unanimously approved a proposal… declaring that it will not recognize any decision, approval, appointment, or action taken by the Council of the Second Authority as long as the council does not meet the explicit minimum requirements established by law,” Karhi and Levin said in a joint statement to the press.

The government argued that the court order violates one of the provisions of the 1990 law for the Second Authority, and said “the government has determined that the rule of law obligates all governmental authorities, including the court,” and that “a ruling that directly contradicts the clear language of the law cannot confer authority that does not exist under the law.”

Karhi accused the judges of the High Court of being “drunk with power,” and said their rulings could not override explicit provisions of the law.

“The rule of law is not the rule of judges. Today, the government made it clear: When the High Court tramples the law, the state will not comply with it,” declared Karhi.

Opposition leaders denounced the cabinet’s declaration, accusing the government of creating a constitutional crisis and violating the rule of law, and warning that the declaration could unravel the willingness of others to obey the law.

“A government that does not accept the rulings of the High Court of Justice immediately becomes an unlawful government whose rulings and decisions we will not accept,” said Opposition Leader Yair Lapid, adding that the opposition would view the council’s decisions as valid.

Former prime minister Naftali Bennett, who leads the Together party with Lapid, said the cabinet’s declaration was a “severe and dangerous breach of trust by the government against the state,” while Yashar party chief Gadi Eisenkot said the government was “assaulting Israeli democracy.”

The controversy stems from several controversial appointments to the Council of the Second Authority by the government in March, including Yifat Ben Hai Segev — a former chair of the Cable and Satellite Broadcasting Council who had also served on the advisory board for Channel 13 — as chair of the Second Authority council.

Ben Hai Segev was also a witness for the prosecution in Prime Minister Benjamin Netanyahu’s criminal trial, but in 2022, she reversed her testimony in court in favor of Netanyahu from what she had originally told investigators before the premier was indicted in 2020.

Channel 13 reported in March that Netanyahu had himself voted for Ben Hai Segev’s appointment as head of the Council of the Second Authority, in what Attorney General Gali Baharav Miara subsequently stated was a violation of a conflict of interest agreement signed by Netanyahu in 2020 not to have any dealings with witnesses in his criminal trial.

The Union of Journalists in Israel, as well as the Movement for Quality Government and other organizations, petitioned the High Court in March against the appointments, and in May the court froze the activities of the council until a final decision on the issue.

Following the May ruling and the apparently dim view the High Court had taken of the new appointments, six members of the Second Authority council resigned one after the other — reportedly under heavy pressure from Karhi — taking the number of members down to nine out of 15, meaning that the council could no longer function due to the quorum requirement.

It also meant, specifically, that the council would not be able to make a decision on the Channel 13 acquisition.

In the wake of that development, the High Court issued an especially sharp ruling against Karhi and the government in June, stating that the affidavits filed to the court by the communications minister and the council members who resigned “raise a serious suspicion that their resignation was intended solely to thwart prior decisions” issued by the court and to “interfere with this court’s ability to examine all the claims at issue.”

The court unfroze the council’s operations and further ruled that the apparently coordinated resignations would not count when bearing in mind the necessary quorum for the council’s operations, meaning that the council could continue to carry out its functions.

In Karhi and Levin’s joint statement announcing their decision to disobey the court, the justice minister insisted that the court was obligated to abide by the specific clause in the Second Authority law preventing council operations without a quorum.

“In a democratic state, the Knesset legislates the law, and the court is obligated to apply it. When a ruling stands in direct contradiction to the wording of the law, this is not judicial review but rather a violation of the principle of the separation of powers,” declared Levin.

But the Movement for Quality Government accused the government itself of violating the rule of law by stating that it would ignore the court’s ruling.

“A government that chooses for itself which rulings to obey and which to violate is trampling the rule of law. This is anarchic conduct, this is criminal conduct… We will carry on the legal and public struggle until it is clear to everyone: In the State of Israel, no one is above the law – not even the government,” the organization said.

The struggle over the Second Authority comes against the backdrop of Karhi’s persistent efforts over the entire course of the government’s tenure to exert greater control over the regulation of broadcast media, as well as his efforts to reduce the independence of the Kan public broadcaster, or shut down it down completely.