Bill to Suspend Israeli Arab Lawmakers Marred by Legal Issues, Council Says

Knesset Constitution, Law and Justice Committee legal adviser calls to remove clause allowing MK to be suspended for denying Israel’s Jewish and democratic nature.

MK Haneen Zoabi being removed from the podium at the Knesset, February 8, 2016.
Emil Salman

The legal advice department of the Knesset Constitution, Law and Justice Committee examined the draft of the so-called Suspension Bill and on Monday presented an opinion in which it approved the bill’s advancement. However, the legal opinion presented a series of problems that the bill is liable to cause if it passes in its present format.

The opinion calls for a removal of the provision enabling the suspension of an MK for negating the Jewish and democratic character of the State of Israel, because that reason is insufficiently concrete, compared to the other reasons for suspension – incitement to racism and support for an armed struggle.

Committee chairman Nissan Slomiansky (Habayit Hayehudi) told Haaretz that he is considering removing this clause, because it is “too vague” and will make it difficult for MKs to advance suspension proceedings.

Knesset legal adviser Eyal Yinon
Emil Salman

A Likud source who is involved in drafting the law said that Knesset legal adviser Eyal Yinon tends to permit promotion of the present proposal, although he has legal reservations about it. Yinon’s opinion is particularly important in light of the fact that the government decided to advance the law via the Knesset rather than through the ministerial Legislation Committee, where Attorney General Avichai Mendelblit would have been involved in drafting the law and could have delayed it if it were found to contain constitutional deficiencies.

Slomiansky recently finished writing a new version of the bill, and on Wednesday it will be discussed in the Constitution, Law and Justice Committee.

The updated version is more stringent, and states that by a majority of 90 members the Knesset can suspend any MK who has expressed verbal support for an individual terrorist, and not only for a terror organization. In addition, the Knesset will also be able to suspend an MK for incitement to racism or rejecting the existence of the State of Israel as a Jewish and democratic state – a reason that Slomiansky is now thinking of eliminating. Like the previous version of the draft bill, the present version does not place a time limit on the suspension that the MKs can impose on their colleagues.

Knesset Speaker Yuli Edelstein (Likud) explained Monday in a closed forum in the Knesset that he would not have permitted the advancement of the original version of the law, which allowed for suspending an incumbent MK for reasons of “conduct unbecoming his status as an MK.”

Knesset Constitution, Law and Justice Committee chairman MK Nissan Slomiansky.
Emil Salman

“This proposal will not be placed on the agenda as long as I am the speaker,” said Edelstein regarding the amorphous reason for suspension, which does not appear in the present version.

Edelstein said on Tuesday morning that he supports the principles of the new Suspension Bill presented by Slomiansky. “If it is legislated correctly there will be no blow to democracy but even an improvement in democracy,” Edelstein told Israel Radio.

Edelstein said that he supports the two demands of the committee’s legal advisers, which are meant to deal with problems in the present version. He called to advance “a reasonable draft bill that will put an end to the situation in which MKs are saying openly, over the airwaves, at every opportunity, that they don’t recognize Israel and they support the terrorists.”

In reference to his objections to various clauses in the draft bill, Edelstein said that “the devil is in the details, certainly in a draft bill – we have to place clear obstacles.”

He explained that his opposition to the law in the video clip publicized Monday referred to its earlier version rather than the present one.

Smoliansky’s new draft bill calls for a change in paragraph 7a of the Basic Law on the Knesset, which defines the reasons for which the Central Elections Committee can prevent a candidate or a party list from running in an election. The proposal expands the reasons for rejecting a candidate or a list, stating that it’s sufficient if they express support for an armed struggle that is not necessarily identified with a terrorist organization or an enemy country. It also states that when making a decision about rejecting a candidate or a list, members of the Central Elections Committee can also refer to the candidates’ words and not only to their declared goals or their deeds.

As opposed to the present law, which requires the Supreme Court to ratify decisions of the Central Elections Committee to reject candidates for the Knesset for these reasons, the MKs’ decision to suspend an incumbent MK will not require additional ratification. The suspended MK will be given an extension in order to appeal the decision to the Supreme Court if he so desires. In addition, an MK can be represented by an attorney already during the initial discussions of suspension in the Knesset committee.

The Constitution Committee legal opinion maintained that MKs are liable to turn suspension into a tool for abusing MKs, even in cases where it is clear that the procedure will not lead to suspension in the end. That is because the majority required for beginning the suspension process is only 61 MKs, which is much easier to recruit than a majority of 90 MKs required for completing the suspension.

Another fear regarding the present version is that the MKs will find it difficult to set aside party and political considerations and conduct a quasi-judicial suspension procedure with the proper fairness, and instead of voting according to their conscience will support suspension for narrow political reasons. Another problem mentioned by the legal adviser is that the bill would make it possible to base suspension on a single act by an MK, whereas taking into account the sum total of his actions would probably have led to giving him the benefit of the doubt.

The legal advice team also warned that the next candidate in line on the lists of the various parties could find himself alternately entering and leaving the position of MK throughout the term, in order to replace each of the MKs from the same party who are suspended. According to the opinion, this would make it difficult for him to function as a rank-and-file MK.