Analysis: A minority opinion worth noting

In convicting Tzahi Hanegbi guilty of moral turpitude, Judge Tsur went far beyond the specific case and challenged the entire concept as it applies to MKs.

By DAN IZENBERG
Hanegbi and wife 311 (photo credit: Marc Israel Sellem)
Hanegbi and wife 311
(photo credit: Marc Israel Sellem)
It would have been very difficult for Jerusalem Magistrate’s Court Judge Yoel Tsur to determine that the crime for which suspended parliamentarian Tzahi Hanegbi was convicted involved moral turpitude, with all the consequences of such a decision, when he did not believe the defendant was guilty of the crime in the first place.
“Even though I completely disagreed, and still disagree, with the decision of the majority judges that led to the conviction of Hanegbi for the crime of perjury, and even though I still feel that he was not guilty of committing that crime, I must nevertheless pass sentence on him and decide whether to add moral turpitude to the conviction or not,” Tsur wrote at the beginning of his 33-page decision.
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Not surprisingly, therefore, Tsur ruled that the act of perjury in Hanegbi’s case did not involve moral turpitude.
In doing so, however, the judge went far beyond the specific case of Hanegbi and challenged the entire concept of moral turpitude as it applies to members of Knesset.
He also charged that the application of moral turpitude against MKs violated their fundamental rights because it caused disproportionate harm and because it conflicted with the democratic system of government, which is based on a system of checks and balances among the governing institutions.
The legal basis for suspending Hanegbi are Paragraphs 42A and 42B of the Basic Law: Knesset, which states, “If a Knesset member has been convicted of a felony by a final verdict, and the court by its own initiative or at the request of the attorney-general has determined that the offense bears moral turpitude, his membership in the Knesset shall end on the day the court issued the final verdict… [42A].
“If a Knesset member has been convicted of a felony and the court by its own initiative or at the request of the attorney- general has determined that the offense bears moral turpitude, he will be suspended from membership in the Knesset from the day the court has made this ruling until the ruling is made final [42B (a)].”
This version of the law has been in effect since 2007. However, Tsur pointed out, the provision having to do with the termination or suspension of an MK’s membership in the Knesset because of a criminal conviction was originally passed in 1981. Until then, since the basic law first came into being in 1958, there was no such provision at all.
The amendment passed in 1981 gave the Knesset the right to determine whether an MK who was convicted of a crime and sentenced to at least one year in jail could be removed from parliament.
According to the amendment, at least 10 MKs had to lodge a complaint against the errant MK with the Knesset House Committee, which had to recommend that he be removed. The Knesset then had to approve the recommendation by a two-thirds majority, and only after the MK had been given the opportunity to defend himself before his peers. The Knesset was also given the right to suspend an MK convicted of a crime, either until the court’s ruling became final or until he finished serving his sentence.
There was still no mention of moral turpitude at this point. In 1995, the law was amended again. According to the new legislation, the Knesset was denied any say in whether or not an MK could be removed from parliament. In effect, the power was handed over to the court.
If an MK was convicted of a felony and sentenced to prison for at least one year and the court ruled that the felony involved moral turpitude, the MK was automatically removed from the Knesset. The suspension provision remained as it was and was the only prerogative left to the Knesset.
In 2001, the law was amended again. The requirement that an MK be sentenced to time in prison was abolished. Now all that was required was that a court convict the MK of a crime, punish him but not necessarily send him to jail, and determine that the crime involved moral turpitude. Then the MK would automatically be expelled from the Knesset, if that was the final ruling on the matter.
If, however, a final ruling were delayed by appeals, the MK could theoretically remain in the Knesset, unless the Knesset itself went through the procedure to suspend him.
In 2007, according to the most recent amendment in the Basic Law: Knesset, parliament was deprived of its last remaining power – that is, to suspend an MK convicted of a crime, during the time until the court’s ruling is final. Since then, if the court rules that the crime involved moral turpitude, the MK is automatically suspended until a final ruling on his case.
Tsur described the development of the law over the years as a “constitutional revolution” in which the Knesset was no longer to have any say in the removal or suspension of one of its peers. This situation created a clash between two separate branches of government, in which the court had the upper hand.
From that point of view, he said, it would be much better to leave the decision in the hands of the Knesset. That would still leave the door open for concerned parties who disagreed with the Knesset’s decision to petition against it to the High Court of Justice. In such circumstances, the two branches of government would be on a more equal footing, and the court would be cautious about overturning a Knesset decision.
Tsur called on the Knesset to return to the situation that existed until 1995. That would that restore the power to expel MKs to its rightful place. An added benefit, he wrote, was that it would do away altogether with the concept of moral turpitude, which, in his opinion, was an extremely harsh and insulting term to be applied to MKs.
Prof. Suzie Navot, a constitutional law expert at the College of Management Academic Studies, told The Jerusalem Post that experience had already proved that Tsur’s proposal could not work. According to the law today, the Knesset is empowered to remove the president of the state for reasons of unethical behavior and the like. During the investigation of former president Moshe Katsav on allegations of sexual misconduct, including rape, a motion to remove Katsav was brought to the Knesset House Committee.
However, the committee refused to deal with it on the grounds that it had no criteria or guidelines for dealing with such allegations. As a result, the Knesset did not use its power to force Katsav to step down and he was not removed from office until his lawyers reached a plea bargain with the state prosecution.