Case Number
HCJ 6706/14
Date Decided
2-10-2015
Decision Type
Original
Document Type
Full Opinion
Abstract
This is a statement of reasons for the judgment handed down on Dec. 10, 2014, denying the petition of Petitioner 1, Member of Knesset Hannen Zoabi, in regard to the decision of the Knesset Ethics Committee that found that Petitioner 1 had violated Rule 1A of the Knesset Ethics Rules, and ordered her suspension from participation in meetings of the Knesset plenum and committees, other than for voting, for a period of six months. This decision was made following two statements to the media made by the Petitioner. One was a statement made in a radio interview several days after the abduction of the late Naftali Frenkel, Gil-Ad Shaar and Eyal Yifrach in which the Petitioner, while clarifying that she did not agree with the kidnappers, stated that the kidnappers were not terrorists and justified their actions. The second was a statement that appeared in an article published on the Internet, in the context of which the Petitioner called for the imposition of a blockade of Israel rather than conduct negotiations with it. The decision examined the following questions: Did the Ethics Committee have the authority to impose sanctions for political statements made by a member of the Knesset that were expressed or published outside of the Knesset building, when, in principle, such statements are protected by the functional immunity granted to a member of the Knesset? If so, did the Ethics Committee exercise its authority lawfully under the circumstances of the case?
The High Court of Justice (per Deputy President M. Naor, Justices E. Rubinstein, E. Hayut and H. Melcer concurring, Justice S. Joubran dissenting) denied the petition for the following reasons:
Under the rule established in the Makhoul case, the functional immunity granted to a member of the Knesset by virtue of sec. 1(a) of the Immunity Law does not serve as a shield to proceedings against a member of the Knesset by the Knesset Ethics Committee. The Court rejected the Petitioners’ argument that the rule should be narrowly construed to apply only to circumstances concerning statements made within the Knesset building, or derogatory statements that have a potential for interfering with the proper functioning of the Knesset or that might harm the internal relationships among its members. As held in the Makhoul case, imposing sanctions for unethical statements or actions does not constitute a circumvention of functional immunity. That is also true in regard to the statements that are the subject of these proceedings, even though they were made outside of the Knesset and not in regard to any specific person or organization. Thus, even assuming that the Petitioner’s statements enjoyed functional immunity, it would not prevent the Ethics Committee from addressing them in accordance with the current ethics rules.
Indeed, political expression is of particular importance for members of the Knesset, as it is by that means that Knesset members present their positions to their electorate. This is particularly so in regard to a Knesset member who represents a minority group. Therefore, ethical review of the statements of Knesset members should be limited as far as possible. Indeed, the Ethics Committee correctly directed itself to refrain, as far as possible, from restricting the freedom of expression of Knesset members. However, that does not mean that the Committee lacks the power to address extreme statements that constitute support for terrorist activities against the State’s citizens, or identification with such acts. While it may be that the ethics rules have more limited application to statements made outside of the Knesset, the circumstances of the current matter are extreme.
The Court also rejected the Petitioners’ argument that there is no express provision in the Knesset Rules of Procedure or the Ethics Rules that authorizes the Ethics Committee to impose sanctions for the Petitioner’s statements. In this regard, the Court held that the provisions of Rule 1A of the Ethics Rules – upon which the Ethics Committee based its decision in the regard to the Petitioner – establish the basic values that obligate a member of the Knesset, such as the advancement of society and the good of the State, and upholding the dignity of the Knesset and of its members. These basic values establish general guidelines for the conduct of members of the Knesset, and express the need for preserving public trust in the Knesset, and should be granted independent status that permits the imposition of ethical sanctions by reason of their breach. As noted, the general principles established under Rule 1A include a Knesset member’s obligation to act for the advancement of the good of the State and to uphold the dignity of the Knesset. It was upon those duties that the challenged decision was based.
In light of the above, the Court unanimously held that the decision was within the competence of the Ethics Committee.
The majority further held that the Ethics Committee lawfully exercised its authority in the circumstances of the instant case. It is a matter of decided law that the scope of judicial review is influenced by the type of decision under review. As a rule, the Ethics Committee enjoys broad freedom, and therefore, the scope of judicial review is relatively narrow, and it has even been held that it should be exercised with greater restraint than judicial review of the decisions of other quasi-judicial Knesset bodies. The Court may intervene when the Ethics Committee’s decision violates a law, or where substantive issues, such as the violation of basic constitutional rights, the right to due process, or a violation of the rules of natural justice is concerned. As a rule, the more severe the violation of a Knesset member’s basic rights, and the more the sanction for the conduct deviates from what would be appropriate, the greater the Court’s willingness to intervene.
In the present case, the Ethics Committee found that, in view of their content and the sensitivity of their timing, the Petitioner’s statements were inconsistent with the good of the State, and severely undermined public faith in, and public perception of the Knesset. The Ethics Committee therefore found that the Petitioner’s statements violated Rule 1A(2) and Rule 1A(4) of the Ethics Rules. The Committee’s conclusions did not deviate from the broad margin of discretion granted to it.
The Petitioner’s statements in the interview and in the article were perceived as expressing support for terrorism and for the killing of civilians. In the opinion of the President, in light of all the circumstances, the Petitioner overstepped the boundaries. In this regard, it was held, inter alia, that any form of support for terrorism, coming from any side of the debate, could seriously undermine public faith in, and public perception of the Knesset. Therefore, and in light of the nature and timing of the Petitioner’s statements, there were no grounds for intervention in the Committee’s conclusion that the Petitioner’s statements severely undermined public faith in, and public perception of the Knesset, and constituted a violation of Rule 1A(2) of the Ethics Rules, which establish, inter alia, that a member of the Knesset act for the advancement of the good of the State. It was noted that the primary purpose of that Rule is to ensure that a member of the Knesset act in the public interest, and not exploit his status and authority for personal benefit. In the instant case, on their face, the Petitioner’s statements were not intended to promote her personal interests. However, the HCJ found that even extreme acts and statements that comprise an element of legitimizing terrorist acts against the State’s citizenry are inconsistent with the good of the State. The Petitioner’s statements were not published in the media with explanatory notes. Their spirit – despite the Petitioner’s subsequent disclaimers – was that of identification with terrorist acts and support of violence as a means for achieving political ends. Under these circumstances, there was no room for intervention in the Ethics Committee’s decision that the Petitioner violated the Ethics Rules.
As far as the sanction imposed by the Ethics Committee was concerned, the Court noted that the Committee’s broad discretion also applies to deciding upon the sanction. However, that broad power is not to be understood as a license to impose arbitrary punishment. In imposing a sanction for a violation of the Ethics Rules, the Committee must consider a broad spectrum of factors. In general, the sanction imposed must be proportionate to the severity of the ethical violation committed by the Knesset member. Consequently, the Committee must take into account the severity of the offense and the circumstances of its commission. In regard to statements of members of the Knesset, consideration must be given, inter alia, to the content of the statement, its subject, and its timing. A statement that defames or denigrates individuals or groups is not the same as another outrageous or deviant statement, and a statement that encourages terrorism or violence is not the same as another extreme statement. In addition, the Ethics Committee must take into consideration the circumstances of the actual Knesset member before it, including the question of whether he expressed remorse for his actions, as well as his overall ethics record. Under the circumstances of this case, the Court did not find grounds to intervene in the sanction imposed upon the Petitioner. While the sanction – suspension from participation in meetings of the Knesset plenum and committees for the maximum permitted period – is very severe under the existing hierarchy of sanctions, and is exceptionally severe in comparison to sanctions imposed in the past, under the circumstances, and in light of the Petitioner’s extreme statements and their timing, the Court would not accept the Petitioners’ claim of discrimination and disproportionality. Moreover, the sanction in this case was not a comprehensive suspension from Knesset activity for six months. In addition, given that most of the suspension would coincide with the Knesset’s summer recess – a consideration that the Committee bore in mind – as well as with the elections recess – a consideration of which the Committee was unaware – the practical significance of intervention under these circumstances would be minimal at most.
Deputy President Rubinstein and Justices E. Hayut and H. Melcer concurred, while adding comments. Thus, inter alia, Justice Hayut added two comments. The first was in regard to a Knesset member’s right to inspect the Ethics Committee’s protocols in regard to the proceedings in his matter, which is required as a matter of due process. The second concerned the restriction of the freedom of political expression of an elected representative who represents a minority group. Justice Melcer added a comment in regard to the distinction between legal prohibitions and ethical prohibitions.
Justice Joubran (dissenting) concurred with the President in regard to the matter of competence, however, in his view, a distinction should be made between solely political expressions and expressions that comprised profanity and defamation of individuals and groups. However, in his view, that distinction was not a matter of authority, but rather concerned discretion. That is, it concerned the scope of judicial review appropriate to decisions in regard to such expressions, and the degree of protection that should be afforded them.
In regard to discretion, Justice Joubran was of the opinion that a member of Knesset can be convicted of an ethical violation under Rule 1A(4) where the member violated the dignity of the Knesset or its members, or where a member of Knesset acted in a manner that undermines public trust, while a conviction under Rule 1A(2) would be appropriate where a member of Knesset’s actions were not for the good of the State, as opposed to a situation in which the member did not act to advance its good. This interpretation takes into account that neutral conduct of Knesset members that does not advance but does not harm the State will not fall within the purview of the prohibition. Justice Joubran added that in view of the great value in ensuring the freedom of political expression of Knesset members and limiting its restriction as far as possible, particularly where representatives of minority groups are concerned, and in view of the broad language of the above ethics rules, the conviction of a member of the Knesset by virtue of one of them should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the instant case, Justice Joubran was of the opinion that such clear, unequivocal content could not be attributed to the statements of the Petitioner, both in light of her later expression of reservations in regard to the abduction already in the course of making the statements, and in view of her later explanations in the media. Therefore, in the opinion of Justice Joubran, the decision of the Ethics Committee was unlawful, and the petition should have been granted.
Keywords
Administrative Law -- Knesset Ethics Committee, Administrative Law -- Judicial review, Constitutional Law -- Freedom of Expression, Constitutional Law -- Judicial Review, Constitutional Law -- State of Emergency and National Security
Recommended Citation
Naor, Miriam; Hayut, Esther; Rubinstein, Elyakim; Melcer, Hanan; and Joubran, Salim, "Zoabi v. Knesset's Ethics Committee" (2015). Translated Opinions. 415.
https://larc.cardozo.yu.edu/iscp-opinions/415
