Allan E. Shapiro
1st October 1927 – 12th April 2011

The dangers of blanket immunity

Allan E. Shapiro The Jerusalem Post 28.01.1993 22:18
The dangers of blanket immunity

Should the Knesset change the present rule for a secret ballot on the removal of immunity of Knesset members? The objective of the secret vote provided in the 1951 Knesset immunity law was undoubtedly to prevent political pressures from affecting the outcome. This is also the objective of the statutory provision for a secret Knesset vote for the election of the President, the State Comptroller, and the Knesset members of the Judicial Appointment Committee.

With the election of the President and the state Comptroller in the offing, no one has suggested that the choice should be made by open ballot. Where a personal selection is involved, it makes sense to permit freedom from disclosure. The Knesset member should not have to consider his future relationship with the contending candidates. Moreover, the positions involved are non-political in nature.

Prof. Amnon Rubinstein draws the line between the Knesset member as voter, in which case he is entitled to a secret ballot, and the MK as representative, answerable to the electorate, in which case secrecy should be ruled out. When the issue is the removal of the immunity of a member of the Knesset, neither category seems to fit.

Labor MK Eli Goldschmidt, opposing the removal of immunity from MK Hashem Mahmeed, called for an open vote. He pointed out that, when it came to relatively insignificant matters, such as the budget debate filibuster, the balloting was open. However, when the Knesset deals with an issue "that goes to the heart of our problematic co-existence, each one hides behind the curtain and casts his secret vote." At least on this issue, Goldschmidt was in agreement with Likud MK Tsachi Hanegbi, who favored stripping Mahmeed of his Knesset immunity.

When the Knesset votes on the lifting of immunity, in a sense it is sitting in judgment with regard to the Knesset member whose behavior is under scrutiny. In this quasi-judicial role, the Knesset is perhaps closer to the voter than to the representative model. The problem is that the incidents that trigger a demand for the removal of immunity, if they are not questions of personal honesty, as in the case of Yair Levi, often involve major issues of policy. If so, then the MK should be accountable as a representative.

There is a solution to this dilemma. It is drastic, but it has much to recommend it. The way-out would be to limit Knesset immunity to parliamentary activities alone. This would encourage Knesset members to concentrate on activities within the Knesset, rather than on the extra-parliamentary actions where drawing the line on the member's immunity is problematical, to say the least. The extra-parliamentary arena beckons to those who prefer to wage their battles in the street, not in the Knesset.

This is the lesson of our accumulated national experience. When the late Meir Kahane was elected to the Knesset, he declared that he had sought Knesset election for the stage it provides and for immunity. Within the Knesset, he was little more than an irritant. Outside the Knesset, however, he tried to exploit the freedom of movement that Knesset immunity guarantees for a provocative sally into the Arab town of Um el-Fahm.

More recently, contests over immunity have twice involved the Progressive List MK Mohammed Miari. The first time involved Miari's participation in a mass meeting in memory of Fuad Kawasme, the banished ex-mayor of Hebron. More recently, Attorney-General Harish unsuccessfully sought to have Miari’s immunity removed, so that he could stand trial for his meetings with PLO leaders in Athens in 1988. At that time, Miari participated in a PLO press conference and declared his support for the PLO-sponsored "ship of the return" and the uprising in the territories. Hashem Mahmeed’s inflammatory statements in Gaza fall into the same general category.

The Knesset has now removed Mahmeed's immunity, to the extent of restricting his freedom of movement. The possibility of criminal charges remains open. With the removal of immunity, Mahmeed in effect is relegated to the rights that every ordinary citizen enjoys.

When it comes to extra-parliamentary activities, this should be the general rule, not the exception. In 1951, when the Knesset immunity law was enacted, the residue of Mandatory restrictions on basic political freedoms provided the starting point from which deliberations commenced. In large measure, the Knesset immunity law, covering both parliamentary and extra parliamentary activities, provided a bill of rights for Knesset members which should properly have been guaranteed for the population as a whole.

Why force the Knesset - or the High Court of Justice - to decide whether an MK is acting in performance of his Knesset duties (furthering the program of his party, for example) when, far from the legislative arena, he commits acts that are out of bounds for the rest of us?

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