Why Israeli law gives MKs immunity and lets an indicted PM stay in office

Netanyahu hasn’t decided whether to ask for immunity, but his position on the matter, in principle, is clear.

NETANYAHU NEVER wanted a broad government, even when establishing one would not have involved his personal fate, let alone these days, when it would have diluted his persona power and prevented his trial’s delay. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
NETANYAHU NEVER wanted a broad government, even when establishing one would not have involved his personal fate, let alone these days, when it would have diluted his persona power and prevented his trial’s delay.
Prime Minister Benjamin Netanyahu has to decide whether to ask the Knesset to grant him immunity from prosecution on the corruption charges that Attorney-General Avichai Mandelblit seeks to submit against him, with a deadline looming at the end of this week.
And in the meantime, the Supreme Court deliberated whether to make a ruling on the question of Netanyahu’s ability to form a government after the March election – if he gets enough votes – when there is a pending indictment against him. Netanyahu can remain prime minister under indictment; the law makes that clear, but it does not address forming a new government.
Netanyahu has not decided whether to ask for immunity, but his position on the matter, in principle, is clear.
“Immunity is not against democracy,” Netanyahu said at a Likud event on Sunday. “Immunity is a cornerstone of democracy.”
While immunity is probably not something most civics teachers tell students is a core principle of democracy, it is something that many democracies worldwide have found important enough to include in some form in their laws.
The US Constitution gives members of Congress limited immunity to prevent the executive branch from having undue influence on them; they cannot be arrested in the House or Senate or for any speech given there, and they cannot be interrogated. The US Justice Department’s policy is that a president cannot be charged with a crime.
A French constitutional amendment prohibits a president from being investigated for crimes committed before he or she was elected. And there are many other examples. The UK, Australia and Canada grant lawmakers immunity from arrest or imprisonment over a civil claim, and Germany gives parliamentarians extensive immunity that can be, and usually is, rescinded when challenged.
In Israel, there is parliamentary immunity, which is relatively broad compared to other Western countries.
The 1951 MK Immunity Law states that MKs are exempt from criminal or civil responsibility for expressing an opinion or their actions while fulfilling their role as lawmaker – meaning, they cannot be prosecuted or sued for things they say in political speeches, in or out of the Knesset, or for how they vote.
In addition, MKs do not have to testify with information they learned while doing their job as an MK.
The law also states that an MK may not be indicted on criminal charges and they may not be searched or arrested or subject to wiretapping.
Until 2005, all immunity was automatic, and there was a process that would allow the Knesset to remove it from a member suspected of a crime if his or her colleagues saw fit to do so.
Currently, the law requires a lawmaker facing an indictment to ask the Knesset House Committee to grant him or her immunity. The request must pass a vote in the committee and then in the plenum.
After the lawmaker leaves office, the state may prosecute him or her on the charges that were blocked during his or her tenure as an MK.
Former Supreme Court president Aharon Barak described the need for parliamentary immunity in 2005 in response to a challenge to the Knesset maintaining former Likud MK Michael Gorolovsky’s immunity after he voted twice in a Knesset vote.
Immunity is “meant to defend the independence of MKs,” he said. “It allows him, according to his judgment, to enact the principle of representation ... to ensure that the actions of the elected official are a realization of the democratic process ... to strengthen the democratic government.”
Barak also argued immunity is meant to protect minority lawmakers from the majority, citing a case involving former MK Azmi Bishara: “This immunity is necessary to ensure the right of all citizens to full and effective political representation ... and defends them ... from the force of the majority.”
It would be difficult to argue that Netanyahu’s case fits Barak’s logic. But President Reuven Rivlin gave a different explanation in 2005, when he was Knesset speaker.
“What is the significance that led the founders of the Knesset, of that generation, to give total immunity that cannot be undermined to every MK?” Rivlin asked in an interview on the Knesset Channel. “[It came from] the desire to protect the public servant from the government’s ability to bully him.”
In other words, immunity preserves the separation of powers, such that the unelected bureaucrats of the executive branch cannot use the threat of prosecution to pressure elected lawmakers to behave a certain way or to silence them.
In 2001, newly-elected prime minister Ariel Sharon sought to appoint Rivlin as justice minister, but was thwarted because the police investigated Rivlin in seven different cases, most notably about his relationship with builder Dudi Appel. All of the cases were closed three-and-a-half years later, but Rivlin had already lost the portfolio he wanted.
Rivlin referred to the case when explaining that immunity is necessary “if a person is elected to the Knesset and an investigation is opened against him, even though there is no reason… If the State Attorney’s Office and investigating institutions come and decide they want to neutralize an MK for political needs, they will open an investigation against him. Such things have happened in Israel… There is a strong suspicion they did this to prevent [people] from being ministers, especially justice minister.”
For Rivlin 15 years ago, and Netanyahu today, immunity exists not just to ensure lawmakers’ free speech, but because of the possibility of a political sabotage conspiracy.
This brings us to the law allowing a prime minister to stay in office even if he or she is indicted.
The protocols from February 2001, when the Knesset Constitution Committee debated the law, showed they had similar considerations.
Once again, Rivlin expressed concern over executive overreach: “The Knesset is the sovereign, and we cannot be deterred from that... because otherwise we will have ombudsmen who, with their intellectual ability, will decide what is allowed and what is forbidden.”
Tommy Lapid, father of Blue and White MK Yair Lapid, who later became justice minister, said behind the bill stands “the big debate... on the balance between the parliament and the court.”
Rivlin responded that “a prime minister can be persecuted. If you come and say that individuals who were not elected, who did not stand the voters’ test, that the nation did not want can come and say ‘not this man,’ and after that his innocence will be proven or not, and in the meantime a terrible thing happened to a person being elected in a democracy.”
This is only a small snippet of the lawmakers’ discussions, but their arguments dovetail with Netanyahu’s in recent months.
In early December, Netanyahu tweeted a video of Tommy Lapid as justice minister, defending the policy from a Labor proposal to reverse it.
“What are you suggesting, that a bureaucrat can fire a prime minister?” the elder Lapid asked then-Labor MK Ofir Pines-Paz. “You cannot want that. I’m sure that if Shimon Peres knew what you were suggesting he would tell you to back down. You don’t want to give the attorney-general the only and total authority to fire a prime minister and dismantle a government… Is democracy not dear to you?”
This is the reason many MKs who virulently oppose Netanyahu have cited, arguing that the court should not rule on the matter and let the people vote.
But immunity is still left to the lawmakers, who can vote according to their conscience and their values and choose whether they prefer Barak’s reasoning or Rivlin’s when deciding whether to shield Netanyahu for prosecution – for now – or not.