“Expulsion of MKs” Law - Amendment No. 44 to Basic Law: Knesset

Amendment No. 44 to the  Basic Law: The Knesset, passed on 20 July 2016,  allows a three-quarters majority (90 of 120 Knesset members) to oust a serving Knesset member on two potential grounds: 1) incitement to racism; and 2) support for an armed struggle against the State of Israel.

The discriminatory nature of the law is clear from: (1) the lack of a definition of “support” for an armed struggle and lack of clarity as to what constitutes “incitement,” allowing for majority parties to use such grounds against anyone whose statements they disagree with or find politically unpalatable; (2) the existence of an alternative removal pathway for Members of Knesset (MKs) convicted of criminal offenses, which the 2016 law seeks to bypass for politically-motivated expulsions; and (3) the racist and retaliatory political environment in which the law was proposed and passed.

The law opens the door to authoritarian control of the Knesset, by allowing Knesset members to oust their colleagues for virtually any politically-motivated reason and without any substantive process. The law violates basic democratic and constitutional principles, such as the right to vote and to be elected, the right to political expression, the separation of powers, and the right to representation and equality for the Palestinian minority in Israel.

The mere existence of the law – regardless of its enforcement – has a chilling effect on representatives of minority groups, such that they are in fear of their words being exploited by other politicians who wish to oust them from the Knesset. This includes speaking in favor of a state that defends the rights of all of its citizens equally (rather than the current system of Jewish supremacy and discrimination against Palestinians) or voicing support for the right to self-determination for Palestinians. 

The law was passed as an amendment to the Basic Law: The Knesset (1958).  

Article 42a(c)(1) stipulates that: “The Knesset is entitled, by a majority of 90 Members of the Knesset, to decide to terminate the membership of a Knesset Member if it has determined that what is said in article 7a(a)(2) or (3) regarding a candidate, applies to him, after that Knesset was elected.”

Article 42a(c)(2)

“A decision, as stated in paragraph (1), shall be adopted on the basis of a proposal by the House Committee, which was adopted by a majority of three quarters of its members, on the basis of a request by 70 Knesset Members, at least 10 of whom are Members of the Knesset in parliamentary groups that are not sides to agreements that require support of the Government.”

The terms "inciting racism" and "support for armed resistance or a terrorist organization," which serve as grounds for expulsion under the law, are overly vague and broad. Furthermore, the law fails to define what type of conduct would be sufficient to initiate expulsion proceedings. This wide discretion makes it ripe for abuse by lawmakers for their own political purposes. In other instances, vague and overly broad definitions of terror-related offenses – or even worse, no clear definition altogether – have been used by the state of Israel to target and discriminate against Palestinians.^[8] This is especially so in light of the overly broad and vague definition of “terrorism” and “terrorist acts” in Israel’s 2016 Counter-Terrorism Law. These allegations have been repeatedly used against Palestinian politicians, particularly in attempts to disqualify them from running for election due to their expressions of criticism regarding Israel's occupation or their support for the Palestinian national struggle for self-determination.

The existence of an alternative pathway for MKs to be removed due to  criminal offenses further underscores that the Expulsion Law is designed to enable the expulsion of MKs for political motives.

The law infringes on the right to vote and be elected, as well as the rights to equality, freedom of expression, and freedom of assembly. This violates both Israeli and international law;  The Israeli Supreme Court has repeatedly emphasized the importance of the principle of political representation, especially of minority groups: “The essence of democracy, is that it should afford a suitable opportunity for different views and interests to gain representation and influence, in a fair way, without strong entities exploiting [their] positions of power and without depriving weak groups.”^[9] It also previously held that , in light of the supreme importance of the rights to vote and to be elected, “the restrictions imposed on this right must be minimal, and must protect the most vital interests.”^[10]

The right to elect and be elected is enshrined in multiple international instruments and protected under international human rights law, including Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights. International law mandates that these rights be upheld without racial discrimination. The expulsion law blatantly violates these principles by discriminating on the basis of ethno-national identity.

Finally, even if no Palestinian politicians are expelled as a result, the law has the effect of chilling speech and other forms of lawful political dissent. In an interview with Amnesty International, one Palestinian MK, Aida Touma-Suleiman, said that the law acts as “a sword dangled over our heads by members of the Knesset who oppose us politically.”^[11]

Legal challenges to law: