Can the Knesset dissolve itself during recess?
On July 28, 2024, the 25th Knesset entered the longest recess in its history amidst an ongoing military conflict and complex political challenges. This unprecedented situation brought to the forefront the urgent and hypothetical question of whether opposition factions in the Knesset could initiate the dissolution of the Knesset, topple the government, and return the mandate to the people. The question is centered on the theoretical and practical implications of whether the Knesset can be convened by opposition factions during a recess, under Section 21(a) of the Knesset Rules, to legislate its own dissolution according to Section 34 of Basic Law: The Knesset.
I will argue that while the High Court of Justice (HCJ) ruling in Frij restricts convening the Knesset during recess to urgent government matters, private bills aimed at dissolving the Knesset should be an exception. I will analyze the legal background and propose an alternative interpretation that allows the opposition to advance dissolution legislation under certain constitutional conditions.
The Frij Ruling and Section 21(a) of the Knesset Rules
In Frij, the court examined whether Section 21(a) of the Knesset Rules, derived from section 19 of the Basic Law: the Knesset, when interpreted alongside Section 9(b) of the Knesset Law, allows the Knesset to convene during a recess for legislative processes that are not initiated by the government. The case arose in the context of the 20th Knesset’s dissolution, where the Knesset Committee had decided that during the election recess, only the government could request the convening of the Knesset plenum for legislative discussions. In contrast, 25 Knesset members were limited to requesting a plenum session solely for urgent discussions.
Former Chief Justice Hayut ruled that Section 21(a) of the Knesset Rules should be interpreted to allow the Knesset to convene during a recess “solely for the purpose of raising urgent matters of public importance as agenda items.” She further noted that this interpretation aligns with the objective purpose of the legislative amendment that existed prior to this provision, which sought to prevent deviations from the practice of convening the Knesset during recess only as an exception to the general rule of holding plenary sessions, and with the subjective purpose of ensuring that the Knesset’s convening is intended to prevent the suspension of its oversight function over the government’s activities. This ruling highlights that during recess, the Knesset functions in a limited capacity, convening only in exceptional circumstances. Accordingly, the court determined that Section 21(a) strikes a balance between maintaining this reduced level of activity and preserving the ability of Knesset members to convene for oversight when necessary.
Although the judgment is primarily focused on the interpretation of a statutory arrangement and internal parliamentary rules, its theoretical and constitutional implications extend to the substantive possibility of the Knesset dissolving itself during a recess. The dissolution of the Knesset is a critical constitutional tool in a parliamentary system, and restricting the ability to pursue dissolution during a recess limits the opposition’s options to act democratically against the government.
The Normative Framework for Dissolution
Given the context, of both reality and the Frij case, it is essential to understand the broader normative framework that governs the dissolution of the Knesset. In a nutshell, there are several alternatives for dissolving the Knesset. For instance, Section 19 of Basic Law: The Government, equates the resignation of the Prime Minister with the resignation of the government, resulting in a caretaker government until a new one is formed. Another mechanism, a constructive vote of no confidence, outlined in Section 44 of the Knesset Rules and Section 28 of Basic Law: The Government, permits the Knesset to remove the government by proposing an alternative with majority support. Both mechanisms do not necessarily lead to the holding of an election. One option is entirely at the Prime Minister’s discretion and requires no parliamentary involvement, and the other requires considerable political and procedural maneouvering, including securing the backing of 61 Knesset members and presenting a full alternative government. This makes both of these options hard to pursue for the opposition.
The most relevant mechanism is the option of self-dissolution of the Knesset through a private or governmental bill under Section 34 of Basic Law: The Knesset. This requires a majority of at least 61 members of Knesset to pass the dissolution bill, triggering new elections. Although other mechanisms may indirectly result in the dissolution of the Knesset, such as the failure to pass budget legislation under Section 36a of Basic Law: The Knesset, constitutional self-dissolution necessitates a deliberate and active legislative act. This distinction underscores the intentional and decisive nature of self-dissolution as opposed to dissolution triggered by procedural failure. The self-dissolution of the Knesset has historically been driven by a coalition majority, making it highly unlikely for opposition factions to succeed in initiating such legislation under normal circumstances. What is more, the Frij ruling establishes that this mechanism cannot be executed by opposition factions.
A Critique of the Frij Ruling
The Frij ruling may appear as a technical decision focused on the interpretation of an internal parliamentary arrangement, but could, in fact, implicate a broader constitutional dynamic of the Israeli parliamentary system. The Frij ruling interpretation problematically limits the ability to dissolve the Knesset under exceptional circumstances, granting excessive power to the incumbent government over the opposition, particularly, limiting minority members’ ability to initiate constitutional dissolution of the Knesset and topple the government.
While restrictions on private legislation during recess may be justified in normal times to prevent legislative overload and maintain system stability, the rigid application of Section 21(a) raises serious concerns. Even if stability is a legitimate concern, denying the theoretical possibility of forming a parliamentary majority to initiate a dissolution through a private bill contradicts core principles of parliamentary democracy, where the government depends on the confidence of the Knesset.
Moreover, this issue raises a critical normative question regarding the interpretation of the nearly inevitable normative-constitutional conflict between Sections 34 and 19 of Basic Law: The Knesset. The core of the interpretive debate concerns the clash between two constitutional norms that impact the Knesset’s powers during recess. As stated, section 34 grants the Knesset the constitutional authority to dissolve itself, while Section 19, through Section 21(a) of the Knesset Rules, limits the Knesset’s ability to convene for legislative purposes during recess. It can be argued that Section 34, as a substantive constitutional norm, overrides Section 21(a) of the Rules. However, Section 19 provides the Knesset with the authority to establish procedural rules, including limitations on convening during recess. This creates a tension between the Knesset’s constitutional authority to dissolve itself and the procedural constraints imposed by its own Rules during recess.
It can be contended that the legislative self- dissolution of the Knesset, as outlined in Section 34 of Basic Law: The Knesset, is far from a routine political action; it embodies a crucial decision that allows the electorate to reshape their government. A broad support of 61 members for dissolution reflects a significant constitutional event that demands urgent attention. As such, this level of support should be considered an exception to the general principle of restricting the Knesset’s ability to self-dissolution during recess. Conversely, as previously mentioned, the restrictions during recess acknowledge that the Knesset functions in a limited capacity, convening only under exceptional circumstances.
A Balanced Approach
This inevitable constitutional-normative conflict will likely compel the HCJ to determine which norm prevails, specifically addressing whether the Knesset can be convened during recess for private legislation aimed at its self-dissolution. A preferable interpretation would be that Section 21(a) of the Knesset Rules applies to private legislative initiatives, except for those under Section 34 aimed at dissolving the Knesset. This approach balances the need to restrict the Knesset’s convening and limit its work to urgent matters while preserving the possibility of self-dissolution through a private bill. Such an interpretation maintains the distinction between routine legislation and that which leads to the Knesset’s dissolution and new elections, fulfilling the intent behind the rules governing the Knesset’s convening during recess. This conclusion, in my opinion, aligns with the arguments presented and offers an appropriate legal interpretation.
Furthermore, the procedural aspect, with practical implications for the political arena, must also be considered. A bill to dissolve the Knesset must undergo all legislative stages: a 45-day waiting period, three readings, and majority approval. Although the Speaker of the Knesset can shorten the waiting period, it remains a significant time during which coalition factions can rally support and work to block the bill. Therefore, a balanced approach should allow the Knesset to convene for urgent matters while preserving the possibility of dissolution under Section 34. This ensures that the legislative process remains robust and aligned with democratic principles, while also recognizing the procedural complexities involved.
