What is the “MK Expulsion Law?"
Since the Knesset passed Amendment 44 to regulate the possibility of impeaching MK's in 2016, no request has been made, making the case of MK Ofer Cassif unprecedented. An MK can be expelled if the Knesset finds that his or her actions constituted incitement to racism or support of an armed struggle against Israel.
The Knesset vote to expel MK Cassif. Photo by Chaim Goldberg/Flash90
Deliberations about the expulsion of a Knesset member—also known as impeachment—can begin after a request by 70 MKs, including at least 10 members of the opposition • An MK can be expelled if the Knesset finds that his or her actions constituted incitement to racism or support of an armed struggle against Israel • An MK who has been expelled is entitled to appeal the decision to the Supreme Court, which will consider whether the action was justified and compatible with the grounds and proofs for the expulsion.
The Knesset passed Amendment 44 to the Basic Law: The Knesset (“the MK Expulsion Law”) in July 2016. According to this amendment §42a(3) of the Basic Law: The Knesset is empowered, following a special procedure and with a supermajority, to expel one of its members. Since that time, no request to expel (AKA impeach) a member has come up for debate in the Knesset House Committee, making the case of MK Ofer Cassif unprecedented.
The Basic Law states explicitly that a precondition for expulsion of a member is that “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.” In other words, the Knesset must have determined, inter alia, that the MK’s actions constitute “incitement to racism” or “support for an armed struggle by an enemy state, or of a terrorist organization, against the State of Israel.” Note that the amendment, unlike in paragraph, §7(a), which applies to Knesset candidates prior to election, does not include “denying the existence of the State of Israel as a Jewish and democratic state” as grounds for expulsion.
The procedure is laid forth in the Basic Law: The Knesset as well as in the Knesset Law. Expulsion proceedings can begin only after a request has been submitted by 70 MKs, of whom at least 10 must be affiliated with the opposition.[1] The request, accompanied by evidence and arguments, must be submitted to the Speaker of the Knesset.[2] The MK in question must be informed of the House Committee session that takes up the matter at least 10 days in advance. The committee may not reach a decision before it has given the MK and the Attorney General a chance to state their case. The MK is entitled to be represented by an attorney.[3] A committee decision to proceed with the expulsion requires a three-fourths majority.[4] A committee decision against expulsion is final. If it does recommend expulsion, the Knesset plenum must convene to take up the matter; expulsion requires that 90 MKs vote in favor. That is, while 70 MKs are required to advance the initial request for expulsion, a 90 MK supermajority is required in the Knesset for final approval of the expulsion.
If the Knesset approves the expulsion, the MK has the right to appeal the decision to the Supreme Court.[5] This is not a a petition to the high court of justice , but an appeal of the decision itself. Therefore, it is not a question of whether the Knesset has overstepped its authority or made an unreasonable decision, but rather of whether expulsion is justified on the basis of the evidence and grounds alleged. Even though such a proceeding has never taken place, it will probably be similar to those about disqualification of a candidate or the granting or removal of an MK’s parliamentary immunity. Experience shows that the court will delve into the substance of the matter, unlike its custom when exercising oversight of other Knesset actions. This is because the expulsion procedure is quasi-judicial. The Knesset is not voting for a political decision, but has made a legal finding that deals a heavy blow to the right to vote and be elected.
When an appeal was filed against the expulsion amendment after its passage, now-retired Chief Justice Esther Hayut wrote as follows:
Judicial review of an expulsion decision based on the law is anchored as an inherent part of the mechanism to terminate membership. Taking note of the quasi-judicial nature of the expulsion power, we are dealing with judicial review of relatively broad purview.[6]
Justice Hayut added that, “given the common purpose underlying the Expulsion Law on the one hand and §7a of the Basic Law, on the other, it is appropriate that the standards set in rulings about application of the mechanism established by §7a of the Basic Law guide the Knesset for implementation of the mechanism stated in the Expulsion Law as well.” In future proceedings “according to these standards, it would be appropriate that the expulsion power be exercised in a precise and limited fashion and only in extreme and highly exceptional cases.”[7]It seems plausible, then, that the court, when engaged in judicial review of a decision to disqualify a candidate, will insist on unambiguous, clear, and persuasive proofs that demonstrate the existence of one of the two grounds: incitement to racism or support for an armed struggle against the State of Israel. If the evidence does not sustain the existence of either of these, the court is likely to intervene and overturn the Knesset’s decision, even though it was passed by the requisite three-fourth majority.
High Court petitions asking the law be struck down were filed after the passage of the Expulsion Law. The main argument was that it might deal a grievous blow to the right to vote and stand as an MK, made by a body that is not appropriate for doing so. The claim was that the Knesset, as a political entity, is not the forum for hearing testimony in order to reach a quasi-judicial decision. It was further alleged that the Knesset has an inherent conflict of interest when it considers expelling one of its members, in part because of non-objective electoral considerations. What is more, the amendment, it was asserted, was meant to apply mainly to MKs representing Arab parties; making the legislation personal in nature. In addition, because the two grounds stated (incitement to racism and support for an armed struggle) are criminal offenses, the Knesset is intruding on the separation of powers, bypassing the enforcement agencies, and usurping their role of punishing the malefactor. In 2018, the Supreme Court unanimously dismissed the petitions.[8] In its ruling the court rejected the State’s motion in limine that the petition was not “ripe” for consideration because the law had never been implemented. The court held that the tension with the right to vote and stand as a candidate was clear and would exist whenever an MK was expelled pursuant to the law.[9] It also rejected the petitioners’ claim that the amendment contradicted §4 of the Basic Law: The Knesset, which stipulates that elections will be general, national, direct, equal, secret, and proportional. This is an important point, because any change to that clause requires a majority of the Knesset (61 members), and such a majority did not support the bill on its first reading. The court ruled that, contrary to the petitioners’ argument, the amendment does not undermine the principle of equal elections and in any case does not apply during an election period but only during the tenure of the Knesset.[10]
In fact, the most important reason the petition was rejected was that it was an amendment to a Basic Law. When the ruling was handed down, in 2018, the doctrine of an “unconstitutional constitutional amendment” had not yet been formulated (as distinct from “abuse of constituent power” for which there already was a precedent). Several justices noted, without deciding about the Supreme Court’s authority to review the constitutionality of Basic Laws, that even if it has such power, the Expulsion Law did not pose such a fundamental injury to democracy as to justify its invoking the power to review Basic Laws.[11]
Even though the court recognizes that the amendment detracts from the right to vote and be voted for, as well as the right to freedom of political expression,[12] it accepted the position advanced by the State and the Knesset that the law was a “complementary measure” to the power to disqualify candidates under §7a and incorporated checks and balances that were added during the legislative process. These include the deletion of the vague ground of “negation of the existence of the State of Israel as a Jewish and democratic state,” which is one of the grounds for disqualification under §7a of the Basic Law: The Knesset; the unique proceedings and special majority required; and, in particular, the existence of judicial review. This, as already mentioned, is not a High Court petition but an appeal, and consequently the court will delve into the heart of the matter and require unambiguous proofs of the existence of one of the two grounds.
[1] The Basic Law: The Knesset, §42a(c)(3).
[2] The Knesset Law, §8a(a).
[3] The Knesset Law, §8a(c)3–4.
[4] The Basic Law: The Knesset, §42a(c)(2).
[5] The Basic Law: The Knesset, §42a(c)(4).
[6] HCJ 577416, Ben-Meir v. the Knesset (27.5.2018), §31 of Justice Hayut’s opinion.
[7] Ibid.
[8] HCJ 577416, Ben-Meir v. the Knesset, supra, n. 6.
[9] HCJ Ben-Meir, §9 of Justice Hayut’s opinion.
[10] Ibid., §16 of Justice Hayut’s opinion.
[11] Ibid., §25 of Justice Hayut’s opinion.
[12] Ibid., §26 of Justice Hayut’s opinion.