Does the Minister of Justice Have Immunity?

In response to a petition filed against him regarding the intentional delay in appointing a president of the Supreme Court, Minister Levin claimed that it is impossible to sanction him because he enjoys “substantive immunity.” A closer examination of the law reveals that this is not the case.

Photo by: Yonatan Sindel/Flash90

The Supreme Court recently ruled that the minister of justice must bring the selection of a president for the Supreme Court to a vote at the Judicial Selection Committee by January 16, 2025. This was essentially the Court’s ruling on a contempt-of-court motion filed by the Movement for Quality Government in Israel against Minister Levin, in response to his intentional delay in appointing a permanent president of the Supreme Court.

The minister of justice asked for the motion to be rejected, arguing (among other points) that his actions regarding the Judicial Selection Committee are being carried out “as part of the performance of his duties,” and thus the request to impose a fine or imprisonment is in contravention of the substantive immunity he enjoys under the Immunity of Knesset Members Law.

However, convening the Judicial Selection Committee is an action performed by Minister Levin not as a Knesset member, but as a member of the government, in his capacity as justice minister. Do ministers actually have substantive immunity for their actions “as ministers”?

This question has yet to be deeply examined in court rulings, but the correct interpretation of the law would seem to be that ministers do not have substantive immunity for their actions as ministers (apart from a few statutory exceptions explicitly mentioned, such as the one in the Defamation Prohibition Law); rather, immunity applies only to their actions or statements in a parliamentary context.

The Immunity Law states that, “for the purposes of this law, the legal status of a minister or deputy minister who is not a member of Knesset is the same as that of a minister or deputy minister who is a member of Knesset.” This would imply that the Immunity Law also applies to ministers. However, the Immunity Law also states that Knesset members have immunity from criminal or civil judicial proceedings for statements and actions performed as part of their duties, or for the purposes of their duties, as a member of Knesset.

In our view, then, the correct interpretation—contrary to the approach taken by Minister Levin—is that ministers who are Knesset members enjoy substantive immunity only for what they do as Knesset members, not as ministers, and thus ministers who are not Knesset members have substantive immunity only for their parliamentary activities.

The question of whether ministers have immunity for their actions in their role as members of the executive branch has barely featured in case law. In a ruling some two decades ago, on a civil appeal regarding an advert published in the Jerusalem Post at the instigation of Minister Rafael Eitan, the District Court accepted the decision of the local court, according to which extending immunity to a minister who is not a member of Knesset is intended to protect ministers in the context of activities that are similar to those conducted by Knesset members, but not their activities as representatives of the executive branch.

A review of constitutional history leads to a similar conclusion. The record of Knesset discussions regarding the Immunity Law shows that the legislator was guided by the desire to ensure that ministers who are not Knesset members should be able to freely conduct their activities in the Knesset (attending the Knesset, giving speeches, and so on).

There is no doubt that the power to convene the Judicial Selection Committee, which is afforded to the minister by law, is clearly ministerial. The justice minister convenes the Committee wearing his hat of member of the government, not a member of the Knesset. Thus, this activity is not covered by substantive immunity.

Furthermore, even if the courts were not to accept our interpretation, and rule that ministers also have substantive immunity for their actions as ministers, there would be no such immunity in this case for Minister Levin. It should be remembered that the immunity granted to Knesset members is not absolute, and not every action or statement is protected. Case law has adopted the “margin of natural risk” test, which sets the boundaries of substantive immunity. According to this test, broader protection is given to statements than to actions, as public expression is the main tool available to Knesset members—speeches, interviews, and so on. In addition, the courts attach particular importance to the question of whether the statements or actions (which would constitute a criminal offence or grounds for a civil suit) were planned and intentional, or whether the Knesset member inadvertently “blundered” into them.

In the case of Minister Levin, it is clear that the avoidance of convening a vote by the Committee to appoint a president of the Supreme Court, contrary to the High Court of Justice order, is a planned and intentional action. This is not something that Minister Levin has “blundered into,” whether inadvertently or while distracted.

In any case, it is to be hoped that the minister of justice will follow the High Court of Justice ruling and arrange for the appointment of a Supreme Court president in short order.