What the High Court Should Have Said About MK Haneen Zoabi

Knesset members who do not like the views of other MKs do not have the right to impose sanctions because of those opinions, as the High Court should have made clear.

Olivier Fitoussi

Last week’s rejection of petitions by MK Haneen Zoabi isn’t the first time the High Court of Justice has declined to intervene on the issue of Knesset sanctions imposed on the Balad MK for what it saw as her extremist rhetoric.

Zoabi caused a stir by saying that the abductors of three teenage yeshiva students last summer were not terrorists. She also said that she encouraged the Palestinians to “declare a popular uprising” and “impose a siege on Israel instead of negotiating with it.”

In 2013, the High Court dismissed legal challenges on a Knesset decision to strip Zoabi of the privileges accorded every Knesset member, such as the right to a diplomatic passport. The case was filed in 2010, but the court ruled that from the moment that Knesset term had ended [2012], it ceased to be a matter it could address.

When the court denied her petitions challenging the Knesset Ethics Committee’s decision to exclude her from plenum and committee debates (although not from voting) for six months, it relied in part on the fact that the Knesset had just voted to disband in advance of next March’s election. This meant the practical significance of any such intervention would be minuscule, since parliament was not in session.

The judicial passivism that the High Court of Justice exhibited on the previous instance with Zoabi paved the way for the unprecedented Knesset sanction against her this time. And the failure to intervene this time around gives a green light to Knesset members, sending a message that they are allowed to do harm to a parliamentary colleague whom they love to hate.

True, the High Court has not yet published its full reasoning on the latest decision involving Zoabi. But in addition to noting the matter of timing, the four justices (with Justice Salim Joubran dissenting) noted that, although the punishment imposed on her was unusual in its severity compared to previous times, in the circumstances of the case, her harsh statements and their timing, it was not appropriate to intervene and question the judgment of the Ethics Committee.

In its decision, the High Court overlooked the discriminatory political character of the Ethics Committee’s decision. Before Zoabi’s case, the longest suspension ever imposed had been just one day – against then MK Aryeh Eldad (National Union). This indicates that parliamentary members are using their powers to politically persecute one of their colleagues.

It never would have occurred to anyone to exclude MK Miri Regev (Likud) for six months after she called asylum seekers a cancer, or when she expelled MK Jamal Zahalka (Balad) from the Knesset Interior and Environment Committee that she chairs, labeling him a terrorist. In her case, the Ethics Committee didn’t even issue a reprimand. And harsh words from other MKs about Zoabi didn’t lead to sanctions either.

The absurd result is that when other MKs called Zoabi a terrorist in the Knesset, the Ethics Committee believed restraint was warranted regarding complaints about these statements. But when Zoabi expressed herself in a way they deemed inappropriate, they imposed an unprecedented punishment.

The latitude the High Court gave the Ethics Committee to exercise its own judgment sounds in theory like good reasoning. But in practice, what is happening is that Knesset members are exploiting the political power of the majority to hinder the minority. And the High Court of Justice is not filling the breach.

It would have been appropriate for the court to rule that the Ethics Committee has absolutely no authority to rule on political expressions, and instead can deal only with conduct unbecoming in the Knesset itself, or with unethical conduct on the part of Knesset members – such as inappropriate statements directed at one another.

In 2013, the committee itself decided to reject out of hand complaints that related to political positions, deciding that its role was to deal with expressions of contempt toward others.

For some reason, however, when it came to Zoabi, the committee ignored its own rule. That should have set alarm bells ringing among the justices.

Entities such as the Ethics Committee or the Central Elections Committee, which has the authority to disqualify prospective parliamentary candidates and parties, have become a tool with which to persecute Arab Knesset members.

It is true that when it comes to disqualifying candidates and parties from running for the Knesset, the High Court has greatly limited the use of such a tool. In recent years, it has reversed the disqualification of Arab candidates and parties.

But with a proposed law looming in the background that would allow a Knesset majority to exclude a sitting member in extreme circumstances, the High Court should have used the opportunity to make it crystal clear to the Knesset that it cannot impose sanctions against MKs simply because their views outrage the majority of the members of the house.