Photo by Melanie TakefmanOn May 27th, 2018 at 8:30pm, the High Court of Justice dismissed one of two petitions against the “Expulsion Law.” The petitions were submitted by ACRI and Adalah in the name of MK Dr. Yousef Jabareen and by Attorney Shachar Ben-Meir.
The Expulsion Law is an amendment to Basic Law: The Knesset and allows the dismissal of an incumbent Member of Knesset (MK) with a vote of 90 or more MKs. This dismissal does not need to be approved by a court and permits MKs to dismiss a colleague if they believe that the MK in question explicitly or implicitly incites to racism or supports the armed struggle of an enemy country or terrorist organization against Israel. It is clear that this law targets the Arab MKs, as many of their political activities have been branded by other MKs as terrorism in recent years. The court case does not mention this intention.
The Knesset’s claim is that because the amendment has yet to be applied in reality, adjudication is premature. The majority opinion rejected this claim, saying this amendment obviously violates the constitutional right to vote and run for office, and freedom of political expression by public representatives. As President of the High Court Hayut said, “Any future application of this law will certainly violate constitutional rights, and given the quality and extent of such a violation, I do not believe that we should wait for the concrete application of this law before examining its constitutionality.” She added, “the questions raised in this lawsuit are clear and sufficiently delineated, the essential facts for adjudication are laid before us, and any future factual development will not significantly impact the discussion of these questions. The argument before use is clear and not dependent on the real-life application of the law. It should also be noted, that due to the ‘chilling effect’ of the law, the application of it may never be relevant; adjudication is therefore justified.”
The Court also dismissed the petitioner’s argument that the amendment is void due to the Knesset’s non-compliance with Article 4 of the law, which outlines the requirements necessary to change the law. They determined that the Expulsion Law “is not strong enough to impact the equal opportunity for parties to compete in elections. The amendment does not unfairly benefit one party over others and doesn’t create an unfair advantage for one party. The prohibitions inscribed in the Expulsion Law – the content of which will be discussed later on – apply to all parties equally. Additionally, there is no discussion on the issue of a violation of the expectations of a candidate or an elected official, as no MK can reasonably expect that they will be able to incite racism or support an armed struggle against Israeli while they are serving in the Knesset. Furthermore, despite the impacts of the amendments on the right to elect or be elected- which will be expanded on later on- the law is not to be applied during the election period (See Basic Law: Knesset 42(c)(5)). The matter at hand is the behavior of MKs while serving as MKs.” The court also ruled that the mechanism for changing MKs after their election, through replacing the impeached member with another person from their party’s list, does not violate the principles of general election protected in Article 4 of the law. This is because elections in Israel are for party lists, not individuals.
The Court left unanswered the question of its power to void an unconstitutional constitutional amendment. The Court explained that setting an overarching doctrine regarding unconstitutional constitutional amendments, as is practiced in other countries, would raise significant issues. This is because the Israeli constitutional process is incomplete, and especially due to the lack of an official process for creating and amending Basic Laws.
Furthermore, the Court added, the question of a doctrine of judicial review of unconstitutional constitutional amendments is irrelevant in this case as, had the amendment been tested according to international doctrines, the amendment would’ve passed judicial review.
Being that this law is a constitutional amendment, the court did determine that “the process for examining this law is different than the ‘standard’ familiar process for judicial review of a law’s constitutionality. Because of this, the Expulsion Law is not subject to the standard constitutional limitation clauses.”
The Court ruled that although the Expulsion Law violates the right to elect and be elected as well as MKs’ freedom of political expression, it is valid due to its purpose and built-in checks and balances. The purpose of the amendment aligns with the principle of defensive democracy, as the amendment seeks to prevent the misuse of democratic tools to promote anti-democratic goals that would undermine the State’s existence. Additionally, the complex and multi-stage process for dismissing an MK limits the amendment’s power. Therefore, the amendment does not violate an overarching legal principle and should not be subject to the doctrine of an unconstitutional constitutional amendment.
The Court determined that the mechanism set out in Article 7a of the Basic Law should guide the Knesset in dismissal processes as well. Meaning that the dismissal process will be done in a limited and directed manner, only for the most extreme cases, and on the basis of a critical mass of “clear, unequivocal, and convincing evidence”.
The Court decided that it is legitimate for Knesset members, and not the judiciary, to decide to dismiss a fellow MK because the Knesset already has “quasi-judicial” processes and powers in other matters.
Consenting Opinions
Judge Solberg dismissed the petition in its entirety. According to him, the amendment does not violate – in the legal sense of the term – the constitutional right it amends. It redefines, limits, or expands the range of, and delineates the scope of said right. He continues by noting that the doctrine of an unconstitutional constitutional amendment is centered around the question of: has the amendment, through violating the overarching constitutional principle, changed the scope of the basic right? The Judge answered in the negative, stating that the amendment has not significantly changed the scope of the right any more than the other principles inscribed in the law, including Article 7a. However, it is important to note in relation to Judge Solberg’s opinion that Article 7a is only relevant to election periods, whereas the Dismissal Law applies throughout an MKs time as an elected official.
Judge Solberg continued and said that the fear that the misuse of the law will change the rights of MKs is unrealistic and does not justify judicial review at this time.
Judge Mazoz wrote that the lawsuit is premature because it is general and not a result of the application of the amendment against a specific MK. He continued by saying, it is unclear if the amendment will ever be applied, especially given the strict limitations on its use as written within the law. In any case, if it is used in the future, then the test of its validity will be determined with a concrete factual background and not on general-theoretical claims.
Attorneys Hassan Jabareen, Fady Khoury, and Mouna Hadad from Adalah, and Attorneys Gil Gan-Mor, Dan Yakir, and Debbie Gild-Hayo from ACRI represented this case.
Link to full court decision in Hebrew
Background
On 29.12.16 Adalah and ACRI filed a lawsuit against the Expulsion Law in the name of MK Dr. Yousef Jabareen. The Expulsion Law is an amendment to Basic Law: The Knesset, and grants members of Knesset the power to dismiss a colleague with a vote of 90 MKs or more. Dismissal does not need the authorization of the court and is based on the MKs’ perception that the MK in question has explicitly or implicitly incited to racism or supported the armed struggle of an enemy state or terrorist organization against Israel.
The primary claims in the lawsuit are:
1. The amendment consists of a change in the principle of fair and equal elections for the Knesset as written in Article 4 of Basic Law: The Knesset. In order to change this article, there is a requirement that a majority of 61 MKs vote in favor of the change at all three readings of the proposed bill. However, the Expulsion Law was passed in the first reading with a regular majority (a majority of MKs present, therefore less than 61) only.
2. The amendment is unconstitutional as it violates the constitutional rights to elect and be elected, the right to equality and representation of the Arab minority, creates a chilling effect and violates freedom of political expression. The amendment creates an illegitimate mechanism for peer-justice in which the political majority can judge their political opponents from the minority based solely on their worldviews. As such, the amendment violates the basic principles of a democratic government and the separation of powers. Furthermore, the amendment demonstrates a misuse of the constituent authority of the Knesset for the sake political injury of Arab MKs and to avoid the limitations and mechanisms inscribed in Article 7a of Basic Law: The Knesset which allows for the disqualification of candidates running for election.
3. Lastly, there is no justification for this amendment. There are already other processes in place for dealing with extreme situations such as those the Expulsion Law is intended to for. For example, criminal cases in moral turpitude and processes that are handed over to the Knesset Ethics Committee are intended to deal with these extreme situations. The potential additional benefit of this amendment is marginal in comparison with the danger it poses. The law will be exploited for the sake of “on the ground” justice and ad-hoc processes based on the legal actions and expressions of MKs, primarily Arab MKs, in order to limit Arab representation in the Knesset and will create a severe constitutional crisis. The process determined in the law will create a platform for incitement and will undermine the already precarious trust of the Arab population in the political process to the extent that others will not want to replace the dismissed MK and may even lead to boycott of the elections by a portion of the population.
