The Decision (H)
On 13 September 2005, the Supreme Court of Israel issued a written judgment with its explanations for rejecting a petition in January 2005 submitted by Adalah on behalf of Member of Knesset (MK) Issam Makhoul (The Democratic Front for Peace and Equality). The petition challenged a decision of the Knesset's Ethics Committee to punish MK Makhoul for critical statements he made against the government of Israel during a Knesset debate in June 2004. The Supreme Court ruled that the Knesset’s Ethics Committee is authorized to take disciplinary measures against MKs for speech voiced in the Knesset, even speech protected by the parliamentary immunity granted to them in the course of carrying out their parliamentary work.
Adalah Attorneys Hassan Jabareen and Abeer Baker filed the petition on 30 December 2004, demanding that the Supreme Court cancel a Knesset decision of 29 December 2004 banning MK Mahkoul from exercising his right to speak in the Knesset for ten Knesset sessions. The Knesset's decision was issued after Minister of Education Limor Livnat filed a complaint to the Knesset's Ethics Committee, claiming that MK Makhoul had spoken in a pejorative manner against the government of Israel, when he described it as “a government of death," "a government of blood," and "a 'pork' (immoral) government,” in protest against orders which were being debate to force lifeguards to return to work from a strike. During the debate on the strike, MK Makhoul noted that the number of persons who drown in Israel is increasing, and used the title of the book “The Sea of Death” by Brazilian author George Amado, as a metaphor for the government’s policy toward the lifeguards’ demands. In his speech, MK Makhoul also cited MK Shimon Peres, who had previously described the Israeli government as a "pork government.” No complaint was submitted against MK Peres for this comment.
The Knesset’s Ethics Committee decided that MK Makhoul had breached articles 1A(4) and 5 of the Knesset’s Ethical Code, which stipulate that an MK is duty-bound to respect the Knesset and its members.
In the petition, Adalah argued that the statements made by MK Makhoul fall within the immunity granted to him as an MK in order to carry out his parliamentary work under the Law of Immunity of the Knesset – 1951. Under this law, Adalah argued, MK Mahkoul is exempt from any legal actions – including those taken in this case by the Knesset’s Ethics Committee – deriving from political expressions made in the course of carrying out his parliamentary work. Therefore, Adalah argued, the restriction on MK Makhoul's right to speak in the Knesset as a punishment for his statements violates the law. Adalah further emphasized that punishing MK Makhoul for his political statements violates his right of freedom of expression, and might lead to a situation where MKs will limit their political speech, including that made during the course of carrying out their duties as MKs, for fear of being punished. Such self-censorship would cancel out the essence of parliamentary immunity, the purpose of which is to allow MKs to express political opinions without fear. Adalah stressed that MK Makhoul did not violate the ethical rules of the Knesset, since his speech was not directed against the Knesset or its members, but against the policy of the executive branch, and therefore cannot be considered in breach of the Knesset’s Ethical Code.
Supreme Court Chief Justice Aharon Barak held in the judgment that, whilst the decision of the Knesset’s Ethics Committee may be considered in the usual sense as “a legal action,” it is not the kind of legal action against which parliamentary immunity is intended to protect. Justice Barak added that the phrase “legal action” does not apply to measures taken by the Knesset’s Ethics Committee against an MK, and that from this point of departure the Committee is entitled to instigate procedures in matters relating to statements made and acts undertaken in the framework of the parliamentary immunity granted to MKs. An MK’s immunity, according to the Supreme Court, does not apply to procedures instigated by the Ethics Committee or to any other internal procedures of the Knesset.
The Supreme Court refused to decide on the petitioners’ argument that MK Makhoul did not breach the Knesset’s Ethical Code. The Court stated that, although the case concerns “a semi-legal action” taken by the Knesset in which the Court has the authority to intervene, nevertheless, as the Knesset’s decision involves the working methods and internal directives of the Knesset itself, judicial review of decisions of this kind is extremely limited, and the Court tends towards total non-intervention in them.
Regarding the disciplinary measures imposed on MK Makhoul, Justice Barak indicated that the matter involves a punishment which violated the right of MK Makhoul to expression and activity in the Knesset, and that the issue is not a straightforward one. However, Justice Barak ruled that the disciplinary measures imposed by the Ethics Committee were proportionate, and therefore that the Court will not intervene and order the decision to be cancelled.
In Adalah’s view, the Supreme Court’s decision is ambiguous and entails harsh repercussions, particularly for Arab MKs. The political statements of Arab MKs vehemently challenge governmental policy and the prevailing consensus in the Knesset, and on most occasions are harshly contested by the majority of MKs. It is probable that MKs opposed to the viewpoints of Arab MKs for purely political reasons will exploit the Supreme Court’s decision and demand the punishment of Arab MKs for their political statements.
H.C. 12002/04, M.K. Issam Makhoul v. The Knesset (case dismissed).