Israel's Top Court Upholds Law to Remove Lawmakers From Office

Supreme Court President Esther Hayut says the law 'seriously infringes basic rights' but also includes a system of checks and balances

A High Court session deliberating a law to remove sitting lawmakers from office, February, 2018.
Emil Salman

The High Court of Justice on Sunday upheld a law that allows 90 lawmakers to vote to expel one of their colleagues form the Knesset.

A nine justice panel unanimously rejected a petition against the law.

The law, an amendment to the Basic Law on the Knesset, was passed in July 2016. It allows 90 lawmakers to remove a sitting member of Knesset from office if they believe that his actions incite to racism, reflect support for armed struggle against the state or for a terror organization.

Supreme Court President Esther Hayut, who was joined by the other eight judges, wrote in the verdict that while the law "seriously infringes basic rights," it contains a system of checks and balances and "it cannot be said that it contradicts the core of state's democratic identity."

Hayut said that the law merely complements another clause in the same law that states the no one should be elected to the Knesset if his actions or expressions convey incitement to racism or support for terrorism.

Nevertheless, she said, “It would be proper to use the expulsion authority in a limited fashion and not use it except in the most extreme of exceptional circumstances.”

The court also rejected an argument put forward by the petitioners that the constituted a change to Israel’s electoral system, and ruled that it does not impact on the equal opportunity of the lists competing in an election.

The justices did not deal with the question of whether the High Court has the authority to strike down an amendment to a basic law, an issue that is likely to influence whether they can intervene in the event that the Knesset passes “override” legislation.

An incident that was used to show the necessity of the bill was a visit by three Israeli Arab lawmakers from the Balad party, now a faction within the Joint List, to relatives of East Jerusalem Palestinians who had committed attacks in Israel.

The visit was portrayed as a condolence visit and support for terror. Media outlets reported that the lawmakers had observed a minute of silence in support of the attackers.

The lawmakers however denied this, saying the visit was a humanitarian gesture and was made at the request of the families, who wanted help in getting their relatives’ bodies returned for burial. The bodies were held by the police following the attacks.

The MKs also argued that Justice Minister Ayelet Shaked had met with the family of one of an Israeli who was arrested in connection to the Duma arson, which killed three members of a Palestinian family in the West Bank in 2015. The meeting took place after he had confessed to taking part in politically motivated attacks. This meeting, the three said, hadn’t elicited any condemnations. The Knesset Ethics Committee temporarily suspended the lawmakers who had made the visit. 

The Basic Law on the Knesset states that any change to the electoral system requires a special majority – i.e., at least 61 lawmakers. The bill’s first reading passed in March 2016 by a vote of 59-53, which was one of the petition’s main arguments. It passed its second and third readings with a majority of 62 lawmakers. In its ruling, the court stated that there was no requirement that a law of this nature pass by a majority of 61 lawmakers on all three readings.

Even before the amendment passed, the Basic Law on the Knesset stated that a person who acts or expresses himself in way that incites to racism or reflects support for violence against the state or terror cannot contend for the Knesset, but unlike the amendment, such a person can only be disqualified by the High Court. The High Court has repeatedly rejected petitions to disqualify MK Haneen Zoabi and other MKs, and the new law was legislated to circumvent this.

The petitioners also argued that the new law violates the freedom of expression of lawmakers, and of Arab MKs in particular, that it violates the right to vote and to be elected, and that there cannot be a mechanism for MKs to judge each other on an ideological basis.