The world is up in arms about Israel’s proposed law to suspend MKs. Turns out it’s far more restrained than similar laws in the western world.
Last Monday, the Knesset Ethics Committee suspended the three Arab Knesset members of the Balad Party, who caused a national scandal the previous week by meeting with the “bereaved families” of terrorists who had murdered Israelis, whom they dubbed Palestinian “martyrs,” even standing for a moment’s silence. Hanin Zoabi and Basel Ghattas have each been suspended from the Knesset for four months, while Jamal Zahalka has been suspended for two months.
In response to the public outrage, Prime Minister Benjamin Netanyahu announced that he would sponsor an amendment to Basic Law: the Knesset, enabling the Knesset plenary itself to suspend or even expel members for ethics violations. The original draft would have authorized such a move if the Knesset judged members “unfit to serve because of behaviour that does not befit their role,” but thanks to amendments from various coalition parties now more narrowly covers support for terrorism, incitement to racism, or denying Israel’s identity as a Jewish and democratic country. These are already the grounds for disqualification from running for office, but the Supreme Court has hitherto interpreted them laxly.
The present draft, approved by the heads of the coalition factions, would grant this power to a Knesset majority of 90 (out of 120) upon receipt of a complaint signed by 61 MKs or three-quarters of the House Committee. This would also include freezing the legislators’ pay. The bill has yet to receive its precise final form.
The proposal has already aroused controversy inside Israel, including explicit opposition from President Rivlin, and is likely to do so abroad too, as do many politically salient reforms in Jerusalem. Far from undermining Israeli democracy, however, the proposal brings Israel in line with other Western liberal democracies, many of which already have legal mechanisms for a legislature to hold unruly members accountable through suspension or expulsion.
Standard Western Procedure
The United States Constitution, for example, empowers each house of Congress to expel any member by a two-thirds vote. On numerous occasions in the last century, congressmen have resigned to save themselves the embarrassment before a formal vote. Most recently, Senator John Ensign of Nevada resigned in 2011 before an expulsion vote amid an FBI investigation into his illegal cover-up of an extra-marital affair. The Senate last activated this provision of Article 1 Section 5 during the Civil War on similar grounds as the Israeli proposal, namely supporting armed rebellion against the state. The House of Representatives has used as recently as 2002 to expel Representative Jim Traficant of Ohio after a conviction for bribery, racketeering and tax evasion.
Crucially, the Israeli proposal is considerably stricter than its American equivalent, since it would require an absolute majority of three-quarters of legislators rather than only two-thirds of those present and voting. Moreover, whereas congressmen can be expelled for the vague charge of violating a “standard of conduct applicable to the conduct of such Member … in the performance of his duties or the discharge of his responsibilities”, the Israeli equivalent enumerates the offences much more narrowly.
In the United Kingdom, the bar is even lower: members of Parliament can be suspended (and their pay frozen) by a simple parliamentary majority for breaking the Code of Conduct or for contempt of Parliament. The House of Commons may also permanently expel a member, again by a simple majority vote and with no right of appeal, if judged unfit for office (this was used thrice in the twentieth century). In 2015, the House of Lords (the upper chamber) was granted the power to expel errant members, again by majority vote. It already had the power to suspend members: three lords were suspended in 2010 for wrongly claiming exaggerated expenses.
Britain’s political system almost always produces majority-party government, as opposed to coalitions, meaning that its mechanism does not even require cross-party support. In contrast, in the present Knesset, Israeli proposal would effectively require no fewer than eight parties to concur on the suspension of a fellow legislator: every party bar the Joint (Arab) List and the left-wing Meretz would have to concur.
France has a similar procedure to Britain. In the French National Assembly, Rule 73 of the Rules of Procedure enables the temporary suspension of members for ignoring a censure (or being censured twice), resorting to violence in a public sitting, “abusing” the Assembly or its President, or “insulting, provoking or threatening” the nation’s leaders. The President of the Assembly proposes the suspension, and then (by Rule 75) the Assembly can approve the suspension by a simple majority vote without a debate. The sanction was used against communist MP Maxime Gremetz in 2011, for over a month, for disrupting a session and then attacking the agents who attempted to calm him down.
Similar measures exist in other Anglophone democracies. In Australia, the House of Representatives can temporarily suspend members by a simple majority vote after being “named” by the Speaker. Most recently, it voted to suspend the shadow attorney general for three days for refusing to leave the chamber when directed. Another MP was suspended, again by a simple vote, for pouring petrol on himself during a debate. The Canadian House of Commons can expel MPs for “conduct unbecoming the character of a Member”; in 2013, the Canadian Senate suspended without pay three senators for the remainder of the parliamentary session – by simple majority vote of their peers.
On the European continent, the procedures for suspending members of parliament can be even laxer, requiring the order of the legislative president without a vote at all. The speaker of the Italian Chamber of Deputies once suspended a deputy for twelve days for waving a sea bass in the air; in 2015, the Speaker of the Italian Senate suspended two senators for five days for miming an act of oral sex. In the European Union, the President of the European Parliament may, of his own judgement, suspend members from parliamentary activity for two to ten days for “exceptionally serious cases of disorder or disruption of Parliament”, although they are still entitled to vote. In late 2015, two MEPs were suspended for ten days for making Nazi salutes during a parliamentary session.
In the German Bundestag, the president may invoke Rule 38 of the Rules of Procedure to suspend a member for up to thirty days, without a vote, for a “serious breach of order” or failure to “respect the dignity of the Bundestag”. The suspended parliamentarians may then not vote during their exclusion, unless two thirds of the Bundestag votes to derogate from procedure. In 2010, the president of the Bundestag invoked this power to eject tens of Die Linke MPs for holding up signs bearing the names of victims of a German air strike in Afghanistan. In 1984, future foreign minister Joschka Fischer was suspended for two sessions for calling the president an “asshole”. Members of the Bundestag can also, in exceptional and rare cases, be expelled for good for no longer meeting the conditions of eligibility for office; indeed the terms of the Israeli proposal to eject elected members map onto the conditions for eligibility for election.
Not a Copy-Paste Measure
Despite similarities with established procedures in other Western liberal democracies, the proposal in front of the Knesset is no copy-paste of foreign constitutions, and not just because of the stricter procedural requirements for suspension. Whereas suspension from parliamentary activity in other legislatures means that a party’s influence is temporarily diluted, and expulsion may put the seat at risk because it provokes a by-election, the Israeli proposal to suspend membership of the legislature guarantees each party’s presence within the Knesset: even if the three Arab MKs were suspended by a Knesset supermajority, their vacated seats would be temporarily filled by the next candidates on their party’s electoral list.
When defending his proposal, Prime Minister Netanyahu insisted on the right of a democracy to “protect itself”. Indeed, the legislatures of Western liberal democracies commonly reserve the right to either expel or suspend errant members in exceptional circumstances. From a comparative political perspective, the inability of the Knesset to suspend membership of the legislature is the exception, not the norm. The amendment will not pass without considerable controversy and further revisions, but it appears that the Knesset is about to take a serious step towards mimicking the procedures and norms of legislatures in fellow advanced democracies.