(June 7, 2018) On May 27, 2018, Israel’s Supreme Court, sitting as an extended panel of nine justices, rejected joint petitions challenging the constitutionality of amendments authorizing the Knesset (Israel’s Parliament) to remove sitting members determined to have acted “in a way constituting incitement to racism or support of an armed struggle against the State of Israel.” (HC 5744/16 & 10214/16 Ben Meir v. the Knesset (Supreme Court decision rendered May 27, 2018), State of Israel: The Judicial Authority website (in Hebrew).)
The main decision was rendered by Court President Justice Esther Hayut with other justices supporting rejection of the appeals on varied grounds.
Content of the Amendments
The petition centered on the constitutionality of the Basic Law: the Knesset (Amendment No. 44 and Temporary Provision), SEFER HAHUKIM [SH] No. 2568 p. 1086 (Basic Law Amendment), which added section 42A(c) (“the removal law”) to the Basic Law. (SH 5718 No. 244 p. 69.) Implementing procedures were adopted under the Knesset (Amendment No. 43) Law, 5776-2016 (SH No. 2568 p. 1087.)
The Basic Law Amendment authorizes the Knesset, by a majority of 90 Knesset members (MKs), to terminate the membership of a member if it has determined that two of the conditions that would have barred a candidate’s participation in elections would apply to the member after his or her election. These conditions are defined as “incitement to racism” and “support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel.” (Basic Law: the Knesset §§ 7A (a)(2)–(3) & 42A(c)(1) (hereinafter paragraph (1), unofficial English translation, Knesset website).
Main Decision by Court President Justice
- Claim for Lack of Ripeness
According to Court President Justice Hayut the removal law may clearly harm the constitutional rights to elect and be elected and the right of elected officials to freedom of expression. She therefore found no reason to wait for a concrete case where its actual implementation would trigger constitutional review. (HC 5744/16 & 10214/16 ¶ 9.) Furthermore, she opined that the possible “chilling effect” the removal law could have on basic rights justified a review of the petitions. (Id. ¶ 10.)
- Removal Law and Principles of Democratic Elections
Hayut rejected the claim that the harm associated with implementation of the removal law constitutes harm to the principle of equality of elections guaranteed under section 4 of the Basic Law. (Id. ¶ 14.) She determined that the removal law neither provides unfair advantage nor imposes unfair risk on any one candidate list as compared to others (Knesset candidates are not elected directly but through proportional election of candidate lists). Hayut further held that MKs should not have a legitimate expectation that they could, during their tenure as members, incite to racism or support armed struggle against the State. (Id. ¶¶ 12–15.) Anyone who competes for votes and wishes to be elected must adhere to the law and declare that he or she would act within the law. (Id. ¶ 16.)
- Harm to Constitutional Rights and Lack of Constitutionality
The objective of blocking candidates and removal of elected members under the removal law is, according to Hayut, the “prevention of usage of democratic means for furthering anti-democratic goals that undermine the existence of the state.” (Id. ¶¶ 27–28.) Prior to the entry into force of the removal law, removal could be implemented only after the MK’s final conviction of a criminal offense that carries moral turpitude. Alternatively, a member’s candidacy could be blocked only in the next Knesset elections. The removal law could provide a timelier response to an MK’s acts that are viewed as extremely dangerous. In Hayut’s opinion, the conditions for application included in the removal law provide appropriate checks and balances against the concern that the removal law will be used for objectives other than those it was designed to achieve. (Id. ¶ 28.)
Such conditions include the requirement that removal be based specifically on two grounds: “incitement to racism” and “support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel.” An additional proposed ground of “negation of the existence of the State of Israel as a Jewish and democratic state,” a ground for barring a candidate from competing in the elections under section 7A(a)(1) of the Basic Law, was excluded from the possible grounds for removal per recommendation of the Knesset Legal Adviser. This exclusion, according to Hayut, reflects the seriousness of the legislative process involved in the passage of the removal law. (Id. ¶ 29.)
Additional conditions constituting checks and balances in Hayut’s opinion are the special multistep procedure required for a decision on removing a member, the requirement of special bipartisan consent on instituting the removal procedure, and certain protections enjoyed by the member in question. Among these protections are advance notice that must be given to a member whose removal is proposed, the member’s rights to an attorney and to be heard, a special majority of the Knesset Committee conducting the hearing, fourteen days delayed implementation to allow the MK to appeal, and judicial review, among others. (Id. ¶¶ 30–31.)
- Violation of the Principle of Separation of Powers
Hayut rejected the petitioners’ claim that by providing the Court with the authority to review only at the appeals stage rather than at the initial adoption of a decision to remove, the removal law violates the separation of powers. Ultimately, she held, the Supreme Court has the authority to review the Knesset decision on its merits and supervise its constitutionality and reasonableness, including its factual basis. (Id. ¶ 34.)
- Uniqueness of the Removal Law Compared with Such Laws in Other Countries
Hayut accepts that the authority to remove a member is an exceptional authority. It is, however, not unique, as it exists, under some procedural differences, in the United States, Canada, and Great Britain. These differences derive primarily from substantive differences between the Israeli government and election systems and those in other countries. Under these circumstances comparative law cannot provide “inspiration” for interpretation of Israeli law, Hayut concluded. (Id. ¶ 35.)
- Concluding Remarks
The Court held that, considering the removal law’s objective and the comprehensive system of checks and balances it provides, the removal law cannot be said to negate the essence of the state’s democratic identity or endanger its constitutional foundations. (Id. ¶ 36.)
Generally agreeing with the conclusion, each of the other justices provided additional remarks.