Everything you Wanted to Know About the Immunity Law
IDI experts provide an overview to the proposed Immunity Law that would grant members of Knesset automatic immunity from criminal prosecution
Flash 90
- What is the Immunity Law and who has the mandate to revoke it?
The proposed Immunity Law would grant all Members of Knesset immunity from prosecution, including the Prime Minister and members of government. According to the proposed law, the decision to revoke immunity would be in the hands of the Knesset House Committee, and then in the plenum by a regular majority vote. From past experience, a decision not to rescind immunity could be subject to criticism by the Supreme Court. - What is the problem with the Immunity Law?
• Any bill crafted with a particular person in mind is problematic, especially since it seeks to change the democratic ‘rules of the game’ for the benefit of a specific individual. In this context, the purpose of the Immunity Law is to come to the aid of the Prime Minister and other MKs suspected of criminal activity, without any justification for such a bill.
• Since the Law is retroactive, the proposal is a blatant attempt to interfere in an ongoing criminal procedure, and as such--- could shamelessly deal a blow to the rule of law and the principle of equality before the law.
• The proposal is an example of “trusting the cat to guard the cream," in that it makes it possible for MKs to use the Knesset as a refuge for criminals and to protect each other from being indicted. This proposal will do even further damage to the public's trust in the Knesset and respect for the law, and to a certain extent-- may encourage corruption and other crimes. - Did MKs enjoy immunity in the past?
Yes. Until 2005, MKs were immune from being tried for criminal offenses and the authority to revoke such immunity was in the hands of the Knesset. In most cases in which a request was made to put an MK on trial, immunity was rescinded. In the rare cases in which the Knesset refused to rescind immunity, the decision was brought to the courts.
In the wake of severe public criticism, the law was amended in 2005, and a new law –which is still in effect—was passed, stating that MKs do not enjoy automatic immunity, but rather that an MK may request such protection. And so—by default, no one is entitled to immunity unless the Knesset decides to grant it. - The public expressed its confidence in the MKs in the recent elections. Isn’t this a good enough reason to prevent them from being indicted, so long as they are serving as MKs?
First, it is important to remember that the public elect parties or party lists, and not individual politicians. Indicting an MK does not do any harm to the party he belongs to, since in such a case, the party does not forfeit the seat it won in the elections. If an MK is forced to resign, he or she will be replaced by another MK from the same party. Second, in countries in which the rule of law prevails, the question of criminal wrongdoing is decided upon by the courts on the basis of evidence, and not by the majority of the public. - So why not conduct a legal investigation into MKs' alleged wrongdoings when they are no longer in office?
In Israel, there are no term limits for MKs or even—for the Prime Minister, so that an investigation could be delayed for many years, making it more difficult to get to the truth and dealing a blow to the principle of equality before the law. Furthermore, the public's trust in the rule of law is severely harmed when a criminal suspect continues to hold a high position in government, especially if such an individual tries to interfere with the investigation or commits further offenses. - How do other countries deal with immunity?
All over the world, countries have long understood that immunity for elected officials must be significantly curbed. In Europe, the trend is to limit, rather than expand, immunity. For example, France and Italy did away with automatic immunity from indictment, back in the 1990s, and the law now provides immunity only from arrest and imprisonment. International organizations such as the European Union emphasize that immunity is particularly important in countries in which the opposition is in acute danger of being politically harassed. - How is the Immunity Law connected to the Override Clause?
There is no intrinsic connection between the two. The High Court can intervene in a decision to grant or revoke immunity without revoking the law itself. However, in light of the attempts to curtail the High Court's right to strike down legislation and limit its authority to intervene in Knesset decisions through the Override Clause, the Knesset could use the Clause to reinstate laws such as the Immunity Law, even if the High Court rules that they violate the principles of equality and other fundamental rights.
| COUNTRY | TYPE OF IMMUNITY |
| Great Britain, Australia, Canada | Immunity restricted to arrest or imprisonment for a civil claim |
| United States | Immunity from arrest within or on the way to Congress buildings |
| France, Italy | Immunity only from arrest and imprisonment, but not from investigation or indictment (In France – except when the legislative body approves a request for immunity) |
| Slovakia | Immunity has been limited to provide protection from pre-trial arrest. |
| Sweden | Immunity is not granted when the person is suspected of serious crimes (if the penalty for the crime is more than two years' imprisonment) |
| Cyprus | Immunity is not granted when the person is suspected of serious crimes (if the penalty for the crime is more than five years' imprisonment) |
| Germany | Extensive immunity which, in practice, is always rescinded by the Parliament |
| Some European Countries (Austria, Belgium, Denmark, Spain, Luxemburg) | Extensive immunity |