Putting Knesset Members Above the Law

The amendment to the Immunity Law proposed by MK Tally Gotliv would allow MKs to grant themselves immunity from criminal and civil prosecution, undermining equality before the law and creating inherent conflicts of interest that disproportionately protect coalition members from accountability.

MK Tally Gotliv. Photo by Yonatan Sindel/Flash90

The Knesset House Committee recently discussed one of the most baseless elements of the legislation included in the judicial overhaul: the amendment to the Immunity Law put forward by MK Tally Gotliv, which would make the launch of criminal investigations and civil proceedings against Knesset members conditional on prior approval from the Knesset.

Even after the bill has been somewhat “softened,” it still represents a severe blow to the rule of law: It would make the Knesset a safe haven and give Knesset members license to commit crimes and serious civil offenses without let or hindrance. Though some crimes have been explicitly excepted from the amendment, it would still apply to many offenses in the realms of state security, obstruction of justice, assault, fraud, sexual harassment, tax evasion, and more. Regarding civil claims, the bill would apply to libel proceedings and privacy protection cases, among others.

Alongside procedural immunity, which allows the Knesset to prevent the filing of an indictment during a Knesset member’s term of office (following submission of a request for immunity to the Knesset House Committee and the plenum), Knesset members also enjoy substantive immunity. Substantive immunity cannot be removed and does not expire at the end of a member’s term of office (with regard to events that occurred during that term). It applies only to actions performed as part of the member’s parliamentary responsibilities. Because immunity essentially contradicts the rule of law and the principle of equality before the law, the Supreme Court has made clear that it applies only to actions carried out within the framework of the Knesset member’s “field of natural risk,” but not to premeditated criminal acts. These restrictions provide a balance between the need to allow Knesset members to act and fulfill their public mission, and the rule of law. The determination of whether an action is covered by parliamentary immunity is made by the courts (and sometimes by the enforcement agencies, which can be argued against in court), because such a determination involves interpretation of the law, and the courts are the only bodies entrusted with interpreting the law and applying it to specific cases.

Currently, the law does not provide immunity during an investigation. According to the proposed amendment, the fox would be guarding the henhouse The members of Knesset would themselves be responsible for determining whether the act in question was performed as part of the individual’s parliamentary responsibilities, and even then, such a decision would require a large majority of 75 Knesset members. This decision would also be made before an investigation is launched, and thus even in the unlikely event that a majority of 75 is reached, the vote itself would constitute obstruction of the investigation and would likely thwart it—usually, criminal investigations begin covertly, and public proceedings would in many cases render them useless. Furthermore, Knesset members do not have any expertise in such matters; awarding them such powers represents a severe breach of the separation of powers; and this situation would inherently place them in a conflict of interests, given that such decisions would serve as legal precedents.

Thus, the amendment would give Knesset members almost total freedom to break the law and commit civil offenses (such as libel), in a premeditated manner, knowing that the chances of legal repercussions will be minimal, at best. If passed, this bill will place Israel in uncharted territory internationally in terms of parliamentary immunity.

This, then, is another bill aimed at undermining the rule of law and separation of powers, and that seeks to grant even more power to elected officials—particularly to those who are members of the governing coalition, which by definition enjoys a parliamentary majority, and thus would never allow the Knesset to pass a motion against one of its members. The harm it would cause to citizens’ right of access to judicial proceedings, and to equality before the law, makes this bill unconstitutional. The Knesset must not become a safe haven for offenders and criminals.

 

This article was published in the Times of Israel.