Let the people expel MKs
The principle the Supreme Court forgot in coming to uphold the relevant legislation
There is a phrase attributed to the 18th-century French philosopher Voltaire – made to someone he totally disagreed with – that he was ready to die in order for the other to bring unhindered his own views. It is this readiness that the Supreme Court forgot in coming to uphold the legislation enabling the Knesset to expel from its ranks an active member. The judges held that the law can be sustained since it contains checks and balances that hinder its use for manipulative purposes. For example, the vote of 90 MKs – an unusually high number – is needed, with 10 of these votes coming from the opposition parties.
It is hard to imagine that the number of 10 deputies is high given that even in the current Knesset and with a reality of a starkly right-wing government, all the parties that sit in the opposition are not necessarily left-oriented. The leaders of the Labor and Yesh Atid parties have sanctioned in the past, respectively, the settlements and the non-division of Jerusalem.
Nevertheless, the law’s biggest sin is not numerical but conceptual. The arrangement it fosters seemingly just follows another one already existent in Israeli law, according to which a candidate who does not endorse Israel as a Jewish and democratic state cannot run for the Knesset.
Such a precondition can be legally understood. Every country can set its own characteristics and require that its representatives respect them. And if this is the case before the elections, the same is true also in their aftermath. But it is one thing to say that a player cannot join the political game unless he accepts certain rules, and another to take him out of the game just because his opinions do not coincide with yours. Indeed, the opinions of the Arab lawmakers which prompted the relevant legislation are even anti-humanistic to the extent that they support murderers of innocent people. No worldview or justification can be cited in an attempt to mitigate these pronouncements. YET, IT is equally plausible to assume that Israel as a democracy aspires to follow the rules upon which Western, modern democracy lies. Along these rules, the state intervenes and punishes tangible actions that have repercussions to the outer world, not emotions and thoughts, no matter how despicable they may be. For example, incitement is a crime to the extent that it can stir the commitment of other crimes like murder or physical attacks. Which physical attack to other persons can be caused by the solidarity with Israel’s enemies that the Arab lawmakers display? This question the Supreme Court left unanswered.
This does not mean that democracy has to remain silent in coming to experience incidents of verbal and psychological support to perpetrators of terrorist attacks. Yet, there are political means with which the State can relate to these MKs’ acts and expressions. It can cut their salaries, prohibit them from participating in deliberations in Knesset committees or in the plenum, or impose upon them a political embargo.
Nevertheless, the perception that MKs can oust from their midst every peer of theirs with whom they do not find favor is erroneous. It presents the Knesset like a closed club, similar to the country clubs operating all over the country, where members can register or expel at will whomever they want. Yet, the Knesset is a public institution whose composition is decided only through the people’s sovereign will as expressed through elections. The ousting of serving Members of the Knesset – even if we assume that it can take place – is a political act which rests only upon the people.
This is the way it has always been. In ancient Athens, the cradle of democracy, it was the people, not the other politicians, who voted for the city’s leaders to be expelled. To the extent that the people provide the MK with the keys to the Knesset building, it is only the voters who are entitled to take these keys back.
It is indeed disappointing that in Israel voting patterns shaped around the various communities, and elections held only through lists, are destined to contribute to the same people from the Arab parties being reelected to the Knesset over and over again. Yet, this is a question that should be in the epicenter of discussions undertaken by political scientists or sociologists. In the end, law cannot and should not provide arrangements for all matters. This is a principle that the Supreme Court forgot. Now we have to wait until the law is implemented for the first time and draws condemnations from all over the world.
The writer formerly served in the Knesset Legal Department and is currently at King’s College London Dickson Poon School of Law.