On Monday, the Knesset voted in favor of what is known as the “Suspension Bill” in a first reading. This is in fact a controversial amendment to the Basic Law: The Knesset (1958), according to which Israeli MKs can be suspended if 90 of their colleagues vote to do so and certain conditions are met. The grounds for suspension are identical to those listed in the Basic Law: The Knesset for banning a party or person from running in elections and include: incitement to violence or racism, support for armed conflict against Israel, or negating Israel as a Jewish and democratic state.
The bill, which passed by a 59-52 majority, allows 61 MKs to request that the Knesset House Committee suspend an MK. After a committee discussion and vote – during which the potentially suspended MK can defend him or herself with the help of an attorney – 90 MKs would have to vote in the plenary to suspend the MK. The suspension can last till the end of the current Knesset term – a decision which de facto expels the suspended MK from the Knesset and allows the next member of his list to enter the Knesset and become an MK – or it can be shorter, all decided by the plenary while voting on suspension.
This bill is problematic and discriminatory at best, unconstitutional at worst. True, it is not a complete outlier in the current Israeli political and social climate. And, it is rooted in the defensive democracy legal tradition, which grew stronger in Israel since the second Intifada. Still, it seems that this time things have gone too far. I say this for a number of reasons. The first, and most important, reason is that the bill goes against one of the most basic and fundamental rights in any democracy: the sanctity of the people’s vote. According to the bill, the Knesset, by a three-quarters majority, grants itself the authority to expel, under certain circumstances, an MK who was democratically voted for office by the people. In representative democracies, sovereignty lies in the hands of the people, who delegate it to their elected representatives. How then can our elected representatives be allowed to go against the voters’ will and expropriate the personal mandate given by the public to their fellow MK? While it is legitimate for democracies to restrict the right to vote and be elected (and Israel has certainly done so in its primary legislation), such restrictions should be as limited as possible since they harm what are considered to be the most basic democratic rights. Suspending an MK after he or she has been elected by the people is more problematic than preventing that MK from running in the first place, even when the criteria for doing so are the same.
Furthermore, not only is the Knesset harming basic democratic rights, it is also granting itself pseudo-judicial authorities. Needless to say that the Knesset and its legislators do not, and should not, have the legitimacy and authority to prosecute, convict, and punish their fellow MKs. Criminal felonies should be prosecuted by the judiciary and not the legislature; this is what courts are for. And while the parallel decision – which is constantly referred to in the context of this bill – of disqualifying a list or a member of a list from running in the elections is made by a Supreme Court judge who heads the Central Elections Committee and pends upon the approval of the Supreme Court itself, this bill has no such judicial mechanisms to serve as checks and balances.
Last but not least, the Knesset is a political institution and this bill is a political bill, initiated by politicians from a certain side of the political map to target other politicians on the opposite side of the political map. The fact that politicians, who by definition have political agendas as biased and non-objective parties, are granted with the authority to decide upon the political fate of other MKs, who very well may be from the opposing political camp, is inherently wrong and unjust. Can any of us truly believe them to “judge” the cases before them in a pure and objective manner?
In my professional life I study comparative politics, so as in any other case, the first thing I researched was whether this bill or the likes of it exist in other established democracies. Unsurprisingly, the answer is not really. True, members of the U.S. Senate or House of Representatives can expel their colleagues due to misconduct. But this procedure usually comes into effect in cases of legislators who have been convicted of criminal felonies, as the U.S. constitution – unlike Israeli law – does not require an automatic resignation from office by a legislator who was convicted of such crimes. Additionally, the U.S. constitution’s First Amendment clearly protects freedom of speech absent incitement to imminent violence, which makes the Israeli suspension bill – that allows the Knesset to suspend an MK for things he or she said that do not rise to this standard – impossible in the American climate. In the other few countries in which an expulsion arrangement exists (UK, Canada) it is also meant to be used in cases of legislators who have been convicted in criminal felonies, and not as suggested by the Israeli suspension bill. So the fig leaf of the comparison to other respectable democracies does not really hold water in this case.
True, democracy needs to defend itself from those who wish to use its own values against it. Yes, the ongoing Israeli-Palestinian conflict and the constant terror threats force Israel to employ security measures that are sometimes in conflict with certain democratic values. But in recent years, the foundations of this gentle security-democracy equilibrium have been shattered, culminating in a bill that encapsulates too broad an understanding of defensive democracy. From the day the state was founded, Israel struggled to find the thin balance between the liberal basic rights narrative and the defensive democracy narrative, many times with unequivocal success and other times without. Nevertheless, the dominance of the defensive democracy narrative did have a fundamental impact in shaping the democratic character of Israel, and in recent decades its influence has only grown. Today, this narrative assists in establishing a narrow, minimalist understanding of democracy in Israel, one that threatens to exchange majority rule with majority tyranny.