Knesset counsel: Detained Arab MK can’t vote while under arrest

Police raid Member of Knesset Basel Ghattas's office.

December 25, 2016 20:16
4 minute read.

Basel Ghattas in court after being arrested for allegedly smuggling phones to prisoners, Dec. 23, 2016

Basel Ghattas in court after being arrested for allegedly smuggling phones to prisoners, Dec. 23, 2016


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MK Basel Ghattas (Joint List) will not be able to vote in the Knesset on Monday, the first day of voting in the Knesset since the lawmaker was detained Thursday.

Knesset Legal Adviser Eyal Yinon issued a ruling on Ghattas’s unprecedented situation, by which he is the first legislator to be arrested for the purposes of an investigation.

Ghattas was stripped of his immunity and subsequently arrested on Thursday after he was caught on camera smuggling documents, cell phones and related equipment to prisoners convicted of terrorism.

On Friday, the Rishon Lezion Magistrate’s Court extended his remand by four days.

Knesset Speaker Yuli Edelstein instructed Knesset Security Chief Yosef Griff to allow the police to enter Ghattas’s office on Sunday in order to search it. Ghattas will be brought to the Rishon Lezion Magistrate’s Court on Monday, where police are seeking to extend his remand.

Police officers were accompanied by Griff and Yinon to ensure police only reviewed or took documents relevant to their investigation. Any item about which the sides disagree must be put in a closed envelope and brought to a court to decide.

The only other MK to ever have his office searched was Ghattas’s cousin and Balad founder Azmi Bishara in 2007.

Bishara fled the country while under investigation for giving information to Hezbollah during the Second Lebanon War.

Yinon explained that in coming to his decision on Ghattas’s ability to vote, he faced two interests: Joint List voters’ right to representation by Ghattas and the purpose of his arrest, foremost of which is to prevent the investigation from being disrupted. Yinon determined that the second interest is more important.

“From the time it is decided that an MK’s immunity from arrest is taken away, the clear conclusion is that, without another clear instruction, the MK should be treated like any other person [under arrest],” Yinon stated.

In addition, Yinon said the decision to take away an MK’s immunity is not taken lightly, as it goes through the attorney- general, Knesset speaker and Knesset House Committee before final approval in the plenum, such that all are convinced that temporarily harming the principle of representation is justified.

If Ghattas were to be convicted of a crime, appeal the conviction and remain in prison while the appeal is pending, he would be suspended from the Knesset and the next person in the Joint List would take his place. However, that person would have to leave the Knesset if Ghattas is exonerated so he can return to his work as a legislator. This happened when former MK Yitzhak Mordechai was convicted of sexual harassment and assault in 2000.

Yinon said that Ghattas’s current remand, without a conviction, could be short, and therefore does not justify swearing in a new MK.

Setting the precedent of the first MK to go to prison, the Likud’s Shmuel Rechtman was convicted in 1979 for accepting bribes when he was mayor of Rehovot. Yinon posited, however, that his situation is not relevant to this case. At the time, the law did not call for the immediate end of an MK’s term upon conviction and the police would bring him to the Knesset to participate in votes.

Yinon said that once someone is convicted, the considerations of disrupting an investigation or influencing witnesses are no longer pertinent, as they are for Ghattas.

Ghattas will not be able to tell a fellow MK to vote in his place, just as lawmakers who are abroad or ill cannot have someone vote for them in the plenum.

“From all this, we learn that an MK who is under arrest, including house arrest or other alternatives preventing him from entering the Knesset building, cannot participate in votes in Knesset committees and the plenum, even if he cannot be replaced in the plenum,” Yinon said.

However, he added, a court with all of the information on Ghattas’s case can decide that he must be allowed to vote in the Knesset, because doing so will not disrupt the investigation.

Ghattas remains an MK. By law, the Knesset must always have 120 members, meaning 120 people who can vote.

When the Ethics Committee suspends MKs, for example, some may choose not show up to the Knesset for the duration of their punishment, but they still have the right to vote should they decide to do so.

The only way to prematurely end his term in the Knesset would be to convict him of a crime with moral turpitude, or to impeach him for supporting terrorism – something that Environmental Protection Minister Ze’ev Elkin has been trying to do for the past week with little success, due to a refusal by opposition parties to cooperate. In either case, the next person in the Joint List’s candidates list would take Ghattas’s place.

Eliyahu Kamisher contributed to this report.

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