An unnecessary and dangerous law

The proposal to suspend MKs via a parliamentary majority will intensify political witch-hunting and widen the Jewish-Arab divide.

By AMIR FUCHS
Updated: MARCH 3, 2016 14:23
The Knesset plenum (photo credit: MARC ISRAEL SELLEM)
The Knesset plenum
(photo credit: MARC ISRAEL SELLEM)
THE KNESSET is currently in the process of legislating an amendment to Basic Law: The Knesset, which would enable a majority of 90 of its 120 members to suspend delinquent colleagues for an unlimited period of time.
The proposed bill, initiated by Prime Minister Benjamin Netanyahu in the wake of a controversial visit by Arab MKs to Palestinians mourning family members killed while committing acts of terror against Israelis, has undergone several revisions.
The latest version provides for the expulsion of a Knesset Member and his or her replacement by the next person on the relevant party list, if the member, after election to the Knesset, violates any part of the already existing Paragraph 7a of the Basic Law, which specifies the grounds for disqualifying lists or candidates standing for election to the Knesset: opposition to Israel’s existence as a Jewish and democratic state; incitement to racism; or support for armed struggle by a state or terrorist organization against Israel. In other words, the already existing preelection criteria for disqualification would be extended to apply to MKs after election as well.
Two of the grounds for disqualification/expulsion refer to actions that constitute a criminal offense – incitement to racism and support for terror; the third ground, opposition to a Jewish and democratic state is extremely vague – and could theoretically be invoked to disqualify religious MKs advocating a state based on halakha (not democratic) or secular MKs advocating the separation of religion and state (allegedly not Jewish). In practical terms, however, the main trigger for the legislation and virtually the only situations in which it might be used would be against Arab Knesset Members allegedly expressing support for terror – a criminal offense.
The proposed law is therefore both unnecessary and counterproductive.
The way to deal with suspected criminal offenses, and certainly those of this kind, is through the system of criminal law, not the Knesset. The Knesset is a political body, with no expertise in criminal law and no resources for investigating crimes or hearing evidence. For these purposes we have a police force, an attorney general and courts of law.
Moreover, the Knesset, as opposed to the courts, has no way of ruling in any specific case without introducing extraneous populistic and political considerations. Its members would be locked in an inherent conflict of interests. For example, there are Knesset Members who declare day in and day out their antipathy toward the Arab Knesset Members and their activities. How can they be expected to judge any specific case without bias? And how can they be allowed to impose on their political opponents a penalty that violates the right to elect and to be elected.
Not only is the Knesset inherently unsuited to the business of expelling its own members, the same end result could be achieved by simply following existing legal procedures. It is important to emphasize that on such offenses, support for terrorism or incitement to racism, there is no parliamentary immunity. Moreover, if there is a final conviction in a court of law, which would of course include moral turpitude, membership in the Knesset of the convicted member would cease immediately.
True, there are a number of legal systems in which it is possible to expel a member of parliament through parliamentary decision.
For example, in the US a two-thirds majority in Congress can expel a member for misconduct. But since the US system is constituency- based and not proportional, it has produced two main parties rather than a parliament made up of a wide range of parties as is the case in Israel. Expelling a US congressman or senator would entail mobilizing members of his or her own party; there could be no question of ganging up on smaller parties as is the case in Israel.
Moreover, given the first amendment to the US constitution which protects free speech, it would not be possible to expel a congressman for statements alone, whereas in Israel it certainly would be if the proposed amendment passes.
It is obvious therefore that in the US, the congressional power of expulsion is meant to deal with embarrassing personal actions by a congressman that reflect badly on Congress. This is also the case in other countries where the parliaments are empowered to expel.
There is no other case in which conditions for expulsion with clear criminal elements are defined and on which the parliament is empowered to rule as it if it were prosecutor, judge and jury.
This damaging Israeli proposal will only intensify political witch-hunting and widen the Jewish-Arab divide, while inflaming passions at each successive attempt to disqualify sitting Knesset Members. It will further erode Israeli democracy, undermining the crucial defense of its minorities and their untrammeled representation in the Knesset.
Dr. Amir Fuchs is a researcher at the Jerusalem-based Israel Democracy Institute.