Contesting Knesset's Decision to Punish MK Issam Makhoul for Political Statements

HCJ 12002/04, MK Issam Makhoul v. The Knesset

Petition submitted to Supreme Court in 12/04, on behalf of Member of Knesset (MK) Issam Makhoul (The Democratic Front for Peace and Equality - DFHCJ 11225/03, MK Azmi Bishara, et al. v. The Attorney General, et al.PE), demanding that the Court cancel a Knesset decision of 12/04, which banned MK Makhoul from exercising his right to speak in the Knesset and its committees for ten Knesset sessions. Adalah also demanded an injunction to freeze the implementation of the decision pending a final judgment on the petition. The Knesset's decision was issued after MK Limor Livnat, the Minister of Education, filed a complaint against MK Makhoul to the Knesset's Ethics Committee. MK Livnat accused MK Makhoul of making negative statements against the government of Israel, when he described it as, "a government of death," "a government of blood," and "a 'pork' (immoral) government." MK Makhoul made his statements during a Knesset debate in 6/04 on a strike being undertaken by lifeguards. MK Makhoul criticized MKs who wished to force the strikers back to work. MK Makhoul noted that the number of persons who drown in Israel is increasing, and used the title of the book "The Sea of Death" by Brazilian author George Amado, as a metaphor for the government's policy toward the lifeguards' demands. MK Shimon Peres had also described the Israeli government as a "pork government" on the same day but no complaint was submitted against him for this comment. The Ethics Committee decided that MK Makhoul had violated the ethical code for MKs, which stipulates that an MK is duty-bound to respect the Knesset and its members, to behave in a manner fitting for the status of an MK, to work towards strengthening the public's trust in the Knesset, and to convey his/her message with responsibility, integrity and honesty, and imposed its punishment. The Knesset rejected MK Makhoul's appeal against the Ethics Committee's decision.

Adalah argued in the petition that the Law of Immunity of the Knesset - 1951 applies to political speech and that immunity means that an MK is exempt from any legal action based on political statements made in the course of carrying out his/her work, making the restriction on MK Makhoul's right to speak in the Knesset illegal under Israeli law. Adalah also argued that imposing punishments for political statements could lead to MKs' censoring themselves and limiting their political speech, including that made during the course of carrying out their duties as MKs. The Ethics Committee's decision might, therefore, become a tool for restricting the immunity of MKs, and particularly Arab MKs, who are members and representatives of the national minority, Adalah warned. Adalah further contended that MK Makhoul did not violate the ethical rules of the Knesset, since his speech was not directed against the Knesset or its members, but against the policy of the executive branch. In addition, the petition contended that MK Makhoul conveyed his message as a responsible leader of a socialist list: one of the main goals of the DFPE party is to protect workers' rights, including their rights to strike and protest against government policy towards them.

Following a hearing held in 1/05, the Supreme Court dismissed the petition, issuing a written judgment in 9/05. The Court ruled that the Ethics Committee is authorized to take disciplinary measures against MKs for speech voiced in the Knesset, even speech protected by parliamentary immunity. The Court further held that, whilst the Committee's decision may be considered a "legal action," it is not the kind of legal action against which parliamentary immunity is intended to protect, as an MK's immunity, according to the judgment, does not apply to internal procedures of the Knesset. The Court refused to decide on the petitioners' argument that MK Makhoul did not breach the Knesset's Ethical Code, stating that judicial review of decisions of the kind made by the Knesset's Ethics Committee is extremely limited, and the Court tends towards total non-intervention in them.

In Adalah's view, the Supreme Court's decision is ambiguous and entails harsh repercussions, particularly for Arab MKs. The political statements of Arab MKs vehemently challenge governmental policy and the prevailing consensus in the Knesset, and on most occasions are harshly contested by the majority of MKs. It is probable that MKs opposed to the viewpoints of Arab MKs for purely political reasons will exploit the Supreme Court's decision and demand the punishment of Arab MKs for their political statements.

H.C. 12002/04, MK Issam Makhoul v. The Knesset (petition dismissed).