HCJ 11225/03
v.
1. Attorney-General
2. Knesset
3.
The
[1 February 2006]
Before
Petition to the
Facts: In 2000 and
2001, while the petitioner was a member of the Fifteenth Knesset, he made two
speeches. These speeches expressed support and approval for the Hezbollah
organization, which in
In 2002, prior to the elections for the Sixteenth Knesset, applications
were made to the Central Elections Committee to disqualify the candidacy of the
petitioner in those elections, because of what he said in the two speeches. The
Central Elections Committee disqualified the petitioner from standing for
election, but this decision was set aside by the
Meanwhile, the petitioner raised a preliminary
argument in the criminal trial against him that he had substantive immunity
against prosecution for the two speeches, since he made them while he was a
member of the Knesset. The Nazareth Magistrates Court, which was hearing the
trial, held that it would decide the question of substantive immunity after
hearing the evidence in the trial. The petitioner then applied to the
Held: (Majority
opinion — President
(Minority opinion —Justice Hayut) The petitioner’s two speeches are not
protected by substantive immunity, since they expressed support for an armed
struggle of a terrorist organization against the State of Israel. In Central
Elections Committee for the Sixteenth Knesset v. Tibi the petitioner was
not disqualified from standing for election to the Knesset, but the premise for
considering the scope of substantive immunity is completely different from the
criteria that the court adopts when considering whether to disqualify a
candidate from standing for office. The question of substantive immunity
naturally arises with regard to a specific case, whereas for the purpose of
disqualification in elections it is necessary to show that we are speaking of
dominant characteristics that are central to the activities or the statements
of the prospective member of Knesset in general. Moreover, for the purpose of
preventing participation in the elections, ‘convincing, clear and unambiguous evidence’
must be presented as to the purposes and acts of the candidate. By contrast,
the premise for determining the scope of substantive immunity is that the facts
of the indictment will be proved.
Petition granted by majority
opinion (President
Legislation cited:
Basic Law:
the Knesset, ss. 7A, 7A(2), 7A(a)(1), 7A(a)(3), 7A(b), 17.
Immunity,
Rights and Duties of Knesset Members Law, 5711-1951, ss. 1, 1(a1), 1(a1)(3), 2,
2A, 3, 4, 13, 13(a).
Immunity,
Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002.
Penal Law
(Amendment no. 66), 5762-2002.
Political Parties Law, 5752-1992, ss.
2, 5, 5(2).
Prevention of Terrorism Ordinance,
5708-1948, ss. 4, 4(a), 4(b), 4(g), 8.
Israeli
[1] CrimApp 9516/01 Bishara v. State of
[2] EDA 11280/02 Central
Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.
[3] CrimA 255/68 State of
[4] HCJ 620/85 Miari v.
Knesset Speaker [1985] IsrSC 41(4) 169.
[5] HCJ 1843/93 Pinhasi
v. Knesset [1995] IsrSC 49(1) 661.
[6] HCJ 5151/95 Cohen v.
Attorney-General [1995] IsrSC 49(5) 245.
[7] HCJ 11298/03 Movement
for Quality Government in
[8] HCJ 6163/92 Eisenberg
v. Minister of Building and Housing [1993] IsrSC 47(2) 229; [1992-4]
IsrLR 19.
[9] HCJ 507/81 Abu-Hatzeira
MK v. Attorney-General [1981] IsrSC 35(4) 561.
[10] LCA 7504/95 Yassin v. Parties Registrar
[1996] IsrSC 50(2) 45.
[11] LCA 2316/96 Isaacson v. Parties
Registrar [1996] IsrSC 50(2) 529.
[12] LCA 3527/96 Axelbrod v. Property Tax
Director, Hadera Region [1998] IsrSC 52(5) 385.
[13] EA 2/84 Neiman v. Chairman of Elections
Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.
[14] HCJ 6271/96 Be’eri v. Attorney-General
[1996] IsrSC 50(4) 425.
[15] HCJ 588/94 Schlanger v.
Attorney-General [1994] IsrSC 48(3) 40.
[16] HCJ 935/89 Ganor v. Attorney-General
[1990] IsrSC 44(2) 485.
[17] HCJ 4723/96 Atiya v. Attorney-General
[1997] IsrSC 51(3) 714.
[18] CrimFH 8613/96 Jabarin v. State of
[19] HCJ 5364/94 Welner v. Chairman of
Israeli Labour Party [1995] IsrSC 49(1) 758.
[20] EA 2600/99 Erlich v.
Chairman of Central Elections Committee [1999] IsrSC 53(3) 38.
[21] HCJ 399/85 Kahane v.
Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.
[22] CA 214/89 Avneri v.
Shapira [1989] IsrSC 43(3) 840.
[23] EA 1/88 Neiman v.
Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC
42(4) 177.
[24] EA 2/88 Ben-Shalom v.
Central Elections Committee for the Twelfth Knesset [1989] IsrSC 43(4) 221.
[25] CrimA 2831/95 Alba v.
State of
[26] HCJ 1993/03 Movement
for Quality Government in
[27] HCJ 1398/04 Ben-Horin
v. Registrar of Amutot (not yet reported).
Israeli
[28] CrimC (Naz) 1087/02 State of Israel v. Bishara (decision
of 12 November 2003) (unreported).
American
cases cited:
[29]
[30] Jones v.
For the petitioner — H. Jabareen, M. Dalal.
For the respondents — O. Koren,
JUDGMENT
Justice E.
Hayut
The petitioner is the leader of the
National Democratic Assembly party and has served as a member of the Knesset
for that party since the fourteenth Knesset. While he was a member of the
fifteenth Knesset, the petitioner made speeches on two different occasions
outside the Knesset, one in the town of
The facts
1. On
9 September 2001 the first respondent submitted to the Speaker of the Knesset
an application to lift the petitioner’s immunity in order to indict him in a
criminal trial. The application related to the indictments which the first
respondent decided to file against the petitioner. One is the indictment that
is relevant to the petition before us, in which the petitioner is alleged to
have committed an offence of supporting a terrorist organization on two
occasions for remarks that he made during speeches that he gave outside the
Knesset. The second concerns offences of aiding an unlawful departure from
‘The Hezbollah have won, and for the first time since
1967 we have tasted victory. Hezbollah’s right to be proud of its achievement
and to humiliate
The second
event to which the indictment relates concerns a speech that the petitioner
made in Syria approximately one year after the Um Al-Fahem speech, during a
memorial service for Syrian president, Hafez Al-Assad (hereafter — ‘the
Syrian speech’). At the ceremony, which was attended by Ahmad Jibril, the
leader of the Popular Front for the Liberation of Palestine and Hassan
Nasrallah, the leader of the Hezbollah, the petitioner said, inter alia:
‘It is no longer possible
to continue without widening the margin between the possibility of total war
and the fact that surrender is impossible. What characterizes the
Because of
these remarks of the petitioner in the Um Al-Fahem speech and the Syrian
speech, the indictment attributes to him two offences of supporting a terrorist
organization, under s. 4(a) of the Prevention of Terrorism Ordinance, which was
in force at that time but has meanwhile been repealed by the Penal Law
(Amendment no. 66), 5762-2002, and also under ss. 4(b) and 4(g) of the
Prevention of Terrorism Ordinance.
2. The premise that was adopted by the first
respondent with regard to the application for lifting the petitioner’s immunity
was that in the circumstances of the case he did not have substantive immunity
by virtue of s. 1 of the Immunity, Rights and Duties of Knesset Members Law,
5711-1951 (hereafter — ‘the Immunity Law’), since the Knesset cannot lift
substantive immunity. On the basis of this premise and pursuant to the
provisions of s. 13 of the Immunity Law, the first respondent sought to lift
the petitioner’s procedural immunity. The Knesset Committee held two sessions
in this regard, on 25 September 2001 and on 30 October 2001, during which the
first respondent presented the grounds for his application, experts on
constitutional law and the immunity of Knesset members were heard and the
petitioner’s position was heard. Following these sessions, the Committee
decided on 5 November 2001 to recommend that the Knesset should lift the
petitioner’s immunity. This recommendation was discussed in the plenum of the
Knesset on 6 November 2001, and following that session the Knesset decided on 7
November 2001 to adopt the Committee’s recommendation.
3. The indictment against the petitioner was
filed first in the
To
complete the factual picture, we should note another important development
concerning this case. The indictment that we are discussing relates, as we have
said, to two events that took place in the course of the fifteenth Knesset and
it was filed on 12 November 2001, shortly after the fifteenth Knesset decided
to lift the petitioner’s immunity. While the indictment was pending, the
elections for the sixteenth Knesset were held, and prior to those elections the
Central Elections Committee for the Sixteenth Knesset (hereafter — ‘the
Elections Committee’) and this court were called upon to hear various
proceedings that were initiated by certain parties with the aim of preventing
the petitioner from standing as a candidate in those elections. One of the main
arguments that those applicants raised in this context concerned the remarks
that the petitioner made in the Um Al-Fahem speech and in the Syrian speech, as
well as the indictment that was filed against him for those remarks after his
immunity was lifted. The Elections Committee accepted the arguments and decided
by a majority, against the dissenting view of the chairman of the Elections
Committee,
The arguments of the parties
4. The main argument of the petitioner before us
is that the statements attributed to him in the indictment are merely the
expression of an opinion on what are clearly political issues, and that they
were uttered in the course of carrying out his duties and for the purpose of
carrying out his duties as a member of the Knesset. They are therefore protected,
in his opinion, by substantive immunity, which cannot be lifted. The petitioner
further argues that this conclusion is dictated by the purposes of substantive
immunity, which are to allow the member of the Knesset to express political
positions freely and to represent the public that voted for him without fear.
This protection is especially warranted, in the petitioner’s opinion, when we
are speaking of members of the Knesset from parties that represent minority
groups, like the petitioner’s party. The petitioner further argues that in his
speeches he expressed the positions of the National Democratic Assembly that
are set out in the party manifesto, and these positions were approved in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] as
satisfying the conditions in s. 7A of the Basic Law: the Knesset. The
petitioner also complains, in the alternative, of the impropriety of the
process of removing the procedural immunity. According to him, there were
significant defects in the proceeding that justify its being set aside. First, the full facts were not presented to the members
of the Knesset. In particular, the members of the Knesset were not informed of
the fact that the police recommended that the investigation file against the
petitioner should be closed, in so far as the Um Al-Fahem speech was concerned.
In addition, the complete speeches of the petitioner were not brought before
the members of the Knesset; they were only presented with fragments, and even
these were not exact. Second, the Knesset Committee did
not hold a hearing on the actual parts of the speeches that were brought before
it, and it ignored the petitioner’s explanations with regard to their
significance and the circumstances in which they were made. Third, the members of the Knesset did not consider all
the factors that they should have considered before they voted on the proposal
to lift the petitioner’s immunity, and in particular the members of the Knesset
ignored the possibility that irrelevant considerations lay at the heart of the
decisions of the first respondent to file an indictment against the petitioner.
Fourth, the vote of the Knesset
Committee, in which it decided to recommend to the Knesset that it should lift
the petitioner’s immunity, was made after party consultations, and this gives
rise to the suspicion that irrelevant considerations lay at the heart of the
voting of at least some members of the Knesset.
5. The respondents’ position is that the
statements attributed to the petitioner fall outside the scope of substantive
immunity. According to them, the provision which states that substantive
immunity will apply to ‘expressing an opinion… in the course of carrying out
his duties and for the purpose of carrying out his duties as a member of the
Knesset’ should be interpreted in view of the basic constitutional principles
of the State of Israel. This interpretation leads to the conclusion that
statements whose content is support for an armed struggle of a terrorist
organization against the State of Israel cannot be considered to be expressing
an opinion in the course of carrying out his duties and for the purpose of
carrying out his duties as a member of the Knesset, and these statements do not
fall within the scope of substantive immunity. This is the case in the absence
of a provision of statute that expressly provides this. In the respondents’
opinion, a democratic state does not need to allow activity, which clearly
seeks to undermine its ongoing struggle against terrorism in order to protect
its citizens, to benefit from substantive immunity, even if it is done under a
cloak of legitimate parliamentary activity. The respondents do not dispute the
importance of freedom of speech in general and of elected representatives in
particular, or the importance of open and free political debate.
Notwithstanding, according to them, support of an armed struggle of a terrorist
organization against the state falls outside the scope of democratic debate and
discussion and outside the scope of the legitimate expression of public
representatives.
The
respondents also are of the opinion that there were no defects in the process
of lifting the immunity. According to them, the Knesset was not competent to
examine the indictment on its merits, and this also means that it was not
competent to examine the strength of the evidence. Consequently, the material
that was presented to the Knesset was sufficient. First, the evidence on which the indictment is based was
presented comprehensively to the members of the Knesset. The police recommendation
to close the investigation file constitutes an internal opinion and it has no
objective value nor does it constitute any evidence when examining the request
of the attorney-general to lift the petitioner’s immunity. Second, the question whether substantive immunity applies
to the statements that led to the indictment was considered extensively and
thoroughly by the Knesset Committee. The text of the speeches that led to the
filing of the indictment was submitted to the members of the Committee, and a
discussion was held with regard to them. Third, the
petitioner’s argument according to which irrelevant considerations lay at the
basis of the attorney-general’s decision was presented to the Committee,
examined on its merits and rejected by the Committee. Fourth, the petitioner did not properly prove his claim
concerning the party consultations before the vote in the Knesset Committee, or
his claim that these consultations, even if they took place, affected the
position of the Knesset members on the merits of the issue. In view of all this
the respondents request that we deny the petition.
Deliberations
Substantive immunity —
the normative framework and the purposes underlying it
6. Section 17 of the Basic Law: the Knesset
provides that ‘Members of the Knesset have immunity; details shall be provided
in statute.’ Thereby the Israeli legal system adopted an importance principle
that is the essence of the democratic system, whereby a member of parliament
has immunity from legal proceedings. Immunity is intended to ensure that a
member of the Knesset can properly discharge his duties and represent the
public that elected him by giving free and full expression to his opinions and
outlooks, without concern or fear that this may result in a criminal conviction
or a personal pecuniary liability in a civil proceeding. In CrimA 255/68 State of Israel v. Ben-Moshe [3], at p. 439, President
Agranat explained the importance and purposes of the immunity granted to
members of the Knesset when he said:
‘Before us we have a
privilege of supreme constitutional importance, in that it is intended to
guarantee that members of the legislative house of the state have freedom of
opinion, expression and debate, so that they can discharge their duties, as
such, without feeling fear or trepidation and without being concerned that they
may have to answer for this to any person or authority; for the whole nation has a clear essential
interest in the realization of this right, so that it does not suffer a major or minor
violation by anyone; without it the democratic process cannot exist effectively
and it will become valueless.’
Thus we
see that the independence of members of the Knesset is essential for the proper
functioning of a democracy. In discussing this rationale that underlies
subjective immunity, President Shamgar said in HCJ 620/85 Miari v. Knesset Speaker [4], at p. 207:
‘A member of the Knesset,
who cannot express himself without concern for the legal consequences of his
remarks, cannot discharge his duty to the voter. The representatives of the
people… have the task of conducting the political debate. The freedom of
political debate requires that no restriction is placed upon the ability and
right of free expression of the elected representatives.’
An
additional central purpose that can be identified in the historical development
of parliamentary immunity concerns the desire to preserve the separation of
powers and to protect the proper activity of the legislature so that the
executive authority does not intervene in it (see HCJ 1843/93 Pinhasi v. Knesset [5], at pp. 678-679; S.
Nevot, The Subjective
(Professional) Immunity of Knesset Members (Doctoral Thesis — Hebrew University,
1997), at pp. 147-150).
7. There are various models of parliamentary
immunity around the world. There are legal systems that give a member of
parliament substantive immunity while limiting it only to the activity that is
done in the parliament building itself (the United States, England, Canada,
Australia, Germany and Holland). Other countries (France, Italy and Spain) do
not attribute any importance to the place where the activity protected by
immunity is carried out and the immunity extends both to activity carried out
inside parliament and to activity outside it, provided that there is an objective-functional
connection between the activity and the duties of the member of parliament.
Some countries give the member of parliament immunity only for a vote or
expressing an opinion and a few give immunity also for an act (for a detailed
comparative discussion of the various models of substantive immunity, see
Nevot, The Subjective
(Professional) Immunity of Knesset Members, supra, at pp. 98-142).
The
Israeli legislature adopted a broad model of substantive immunity, which is
regulated in s. 1 of the Immunity Law, according to which:
|
‘Immunity in carrying out duties |
1. (a) A member of the Knesset shall not have criminal or
civil liability, and he shall be immune from any legal action, for a vote or
for expressing an opinion orally or in writing, or for an act that he carried
out — in the Knesset or outside it — if the vote, expressing the
opinion or the act were in the course of carrying out his duties, or for the
purpose of carrying out his duties, as a member of the Knesset. …’ |
From this
we see that the substantive immunity of members of the Knesset extends also to
acts and not merely to a vote or opinion, and it includes the activity of the
member of the Knesset whether it is carried out inside the Knesset or outside
it, provided that there is an objective-functional connection between this
activity and his position as a member of the Knesset. This substantive immunity
cannot be lifted (s. 13(a) of the law) and it continues even after the member
of the Knesset leaves office (s. 1(c) of the law) (for the significance of
substantive immunity and the tests concerning the scope of its application, see
Miari v. Knesset Speaker [4], Pinhasi v. Knesset [5]; HCJ 5151/95 Cohen v. Attorney-General [6]; HCJ 11298/03 Movement for Quality Government in Israel v.
Knesset Committee [7]). Alongside the substantive immunity, the Immunity Law further
provides a procedural immunity. The procedural immunity, as distinct from the
substantive immunity, protects a member of the Knesset from being indicted in
criminal proceedings for offences that he did not commit in the course of carrying out his duties or for the purpose of
carrying out his duties as a member of the Knesset. This immunity is provided
in section 4 of the Immunity Law and it applies to offences that were committed
while a member of the Knesset holds office and also to offences that were
committed before a member of the Knesset held office, unless the Knesset
decides to lift the immunity. Lifting procedural immunity is done by means of
the process set out in s. 13 of the law and subject to the conditions set out
therein. The Immunity Law further provides specific provisions concerning the
immunity of members of the Knesset from searches, eavesdropping and arrest (see
ss. 2, 2A and 3 of the Immunity Law respectively).
8. The purposes underlying the substantive
immunity that is granted to members of the Knesset, which we listed above, no
matter how important and significant they may be, do not reflect absolute
values. On the contrary, substantive immunity as a legal institution directly
conflicts with other basic principles that lie at the heart of our legal
system, such as the principle of the rule of law according to which there is no
person or corporation or authority in a democracy that is above the law (see
HCJ 6163/92 Eisenberg v. Minister of Building
and Housing [8], at
p. 274 {82}). Indeed, every person is forbidden to break the law. It is even
more forbidden for a public figure, a member of the legislature, who is
supposed to serve as an example and a civic standard for upholding and
protecting the law. A member of the Knesset who breaks the law undermines
public confidence in the organs of government. An additional basic principle
that conflicts with the institution of substantive immunity is the principle of
equality. This principle implies, inter alia, the outlook that everyone is equal before the law and also the
outlook that every act of legislation is intended to realize the principle of
equality, and not to conflict with it (see HCJ 507/81 Abu-Hatzeira MK v. Attorney-General [9], at p. 585).
Substantive immunity violates the principle of equality. According to it, a
member of the Knesset has no criminal liability for prohibited acts for which
an ordinary citizen, were he to commit them, would be held accountable.
How is it
possible to reconcile the conflicts and the inconsistency between the basic
principles of the legal system that are created by substantive immunity? Where
should we place the boundaries of substantive immunity in order that we do not
overstep the proper balance for realizing its purposes? This was discussed
extensively by President Barak in Pinhasi v. Knesset [5], where he said:
‘The purpose of the
immunity is to prevent a situation in which a member of the Knesset is
prevented from carrying out permitted acts, because of the concern that they
might marginally overstep the boundary of what is prohibited. Immunity “covers”
this margin. In the balance between refraining from carrying out lawful acts
that are a part of the functions of a member of the Knesset and committing
unlawful acts that fall within the margin of risk of the lawful acts, the
Immunity Law preferred the second alternative. Indeed, in order to preserve the
independence and freedom of action of a member of the Knesset, as well as the
proper functioning of the Knesset itself, the Knesset member is given
substantive immunity. This immunity is given to him with regard to any unlawful
act that can be regarded as an improper way of carrying out a lawful act which
falls with the scope of his role as a member of the Knesset, provided that this
unlawful act is sufficiently close, from a substantive viewpoint, to the role
of being a member of the Knesset, so that it can be said that it is a part of
it and it constitutes a part of the natural risk to which every member of the
Knesset is exposed. This approach with regard to the proper balancing point
ensures that substantive immunity acts as a shield against risks that are
inherent and natural to the position of being a member of the Knesset, without
it becoming a carte blanche for abusing the position’ (ibid. [5], at p. 686).
Thus we
see that the ‘margin of natural risk’ test that was formulated by President
Barak in Pinhasi v. Knesset [5], which was adopted as
the decisive test for interpreting the expression ‘in the course of carrying
out his duties or for the purpose of carrying out his duties’ in s. 1 of the
Immunity Law (see Movement
for Quality Government in Israel v. Knesset Committee [7]), tells us that the
premise for substantive immunity is the rule of law (see S. Nevot, ‘The
Immunity of a Member of Knesset for “Expressing an Opinion and an Act in
Carrying out his Duties” — New Tests in the Case Law of the
Substantive immunity and the reciprocal
relationship between it and other legislative arrangements
9. In order to demarcate these ‘red lines,’ we
should examine the institution of substantive immunity in its broad context. We
should address the interaction and reciprocal relationship between substantive
immunity and the provisions of s. 5 of the Political Parties Law, 5752-1992,
and particularly the interaction and reciprocal relationship between
substantive immunity and the provisions of s. 7A of the Basic Law: the Knesset.
Indeed, holding office and acting as a member of Knesset are merely the
ultimate goal of the democratic process in which the members of the Knesset are
appointed to office. The beginning of this process is the registration of the
party under the Political Parties Law. This registration is a necessary
condition for the party competing in the elections to the Knesset (see s. 2 of
the Political Parties Law). Already at this preliminary stage the legislator,
in s. 5 of the Political Parties Law, establishes ‘red lines,’ which, if
crossed, disqualify the party from being lawfully registered. Section 5
provides the following:
|
‘Restrictions upon registering a political party |
5. A political party shall not be
registered if any of its purposes or acts, expressly or by implication, contains
one of the following: |
|
|
(1) Denying the existence of
the State of Israel as a Jewish and democratic state; |
|
|
(2) Incitement
to racism; |
|
|
(2a) Support for an armed struggle of a hostile state or of a
terrorist organization against the State of Israel; |
|
|
(3) A reasonable ground for
concluding that the political party will serve as a cloak for unlawful acts.’ |
A similar
barrier is placed before lists of candidates for the Knesset and before a
candidate for the elections to the Knesset in s. 7A of the Basic Law: the
Knesset, which provides:
|
‘Preventing the participation of a list of
candidates |
7A. A list of candidates shall
not participate in elections to the Knesset nor shall a person be a candidate
in elections to the Knesset if the purposes or acts of the list or the acts
of the person, as applicable, expressly or by implication contain one of the
following: |
|
|
(1) Denying the existence of
the State of Israel as a Jewish and democratic state; |
|
|
(2) Incitement
to racism; |
|
|
(3) Support for an armed struggle of a hostile state or of a
terrorist organization against the State of Israel.’ |
The
correlation between the legislative arrangements in s. 5 of the Political
Parties Law and those in s. 7A of the Basic Law: the Knesset is obvious: both
of them concern the power of a political party and the power of its candidates
to participate in elections; both of them violate similar freedoms and both of
them are intended to protect similar values. For this reason, each of them
delineates similar ‘red lines’ that a person cannot cross if he wishes to be
able to serve as a member of the Knesset (see LCA 7504/95 Yassin v. Parties Registrar [10], at p. 68; LCA
2316/96 Isaacson v. Parties
Registrar [11], at
pp. 539-540).
10. The
Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002
(hereafter — Amendment no. 29), which was enacted after the events that
are the subject of the indictment in our case, also enshrined these ‘red lines’
in the Immunity Law and added to it the provision of s. 1(a1), which provides:
|
‘Immunity in carrying out duties |
1. … (a1) To remove doubt, an
act, including a statement, which is not incidental, of a member of the
Knesset that contains one of the following shall not be regarded, for the
purpose of this law, as expressing an opinion or as an act that is carried
out in the course of his duties or for the purpose of his duties as a member
of the Knesset: |
|
|
(1) Denying the existence of
the State of Israel as the state of the Jewish people; |
|
|
(2) Denying the democratic
character of the state; |
|
|
(3)
Incitement to racism because of colour or belonging to a race or to a
national-ethnic origin; |
|
|
(4) Support for an armed struggle of a hostile state or for acts
of terrorism against the State of Israel or against Jews or Arabs because
they are Jews or Arabs, in |
|
|
…’ |
Does the fact that the restrictions in s. 1(a1) were only added to the
Immunity law in 2002 mean that before Amendment no. 29 those restrictions did
not apply with regard to limiting the scope of substantive immunity? I do not
think so. In my opinion, we are dealing with a ‘clarifying amendment’ that
merely reflects the legal position prior to the amendment. It should be noted
that the determination that we are dealing with a ‘clarifying amendment’ does
not mean that the amendment should be applied retrospectively in a literal
manner. All that this determination tells us is that we should regard the
amendment as important in view of the fact that it clarifies the legal position
that prevailed before it, notwithstanding the position that the state presented
before us in this regard (for a legislative amendment as a ‘clarifying
amendment,’ see LCA 3527/96 Axelbrod v. Property Tax Director, Hadera
Region [12], at p. 406;
11. Support
for the position that amendment no. 29 is merely a ‘clarifying amendment,’
which reflects continuity in realizing the purposes underlying s. 5 of the
Political Parties Law and s. 7A of the Basic Law: the Knesset, can be found in
the remarks uttered by President Shamgar in Miari v. Knesset Speaker [4] with regard to s. 1 of the Immunity Law before
the amendment, even though in that case no decision was necessary on this
issue. He said the following:
‘This argument
in essence is therefore that the legislature did not merely intend to prohibit
a certain type of activity before the elections, but the aforesaid s. 7A was
intended to provide a selection process ab initio that would determine the appearance
of the Knesset and its elected representatives after the elections, and this
gives rise to the connection between what is stated in s. 7A and how the
elected representative carries out his duties’ (ibid. [4], at p. 211; see also Pinhasi v. Knesset [5], at p. 690).
The
approach that there is a link between the ‘red lines’ provided in s. 5 of the
Political Parties Law, s. 7A of the Basic Law: the Knesset and s. 1 of the
Immunity Law, which jointly express the goal of realizing the constitutional
norms underlying those sections, is mentioned also in the work of Dr S. Nevot,
who says:
‘It would
appear that ss. 5 and 7A, on the one hand, and s. 1 of the Immunity Law, on the
other hand, were intended to prevent this phenomenon. Preventing the
registration of a political party and preventing its participation in elections
is a preliminary stage, which is intended to select the organizations and the
persons that will be allowed to take part in the institution of the
legislature. After the “selection,” the institution of immunity will protect
the freedom of expression of those who are chosen. The premise in this
protection is that the elected representatives are only those people whose
expressions and activity have been defined as legitimate. The Immunity Law is
intended to complete, in this sense, the “selection” process that the
legislature began in sections 5 and 7A. It is precisely the main purpose of
parliamentary immunity — the one that regards the immunity as a means of
protecting the legislature itself rather than the individual member of the
Knesset — that requires an examination of all the arrangements that apply
to the substance and character of the legislature’ (see Nevot, The Subjective (Professional) Immunity of
Knesset Members, supra, at p. 233).
Thus we
see that expressing an opinion or doing an act that involves a denial of the
existence of the State of Israel as a Jewish and democratic state, support for
an armed struggle of a hostile state or of a terrorist organization against the
State of Israel, incitement to racism or support for acts of terror against the
Arab minority in Israel all are ‘beyond the pale’ in so far as carrying out the
duties of a member of Knesset is concerned. With regard to expressing opinions
or doing acts of this kind, we are therefore not required to examine the
‘margin of natural risk’ that was determined in Pinhasi v. Knesset [5], because we are concerned
with expressions and acts that by their very type and nature cannot be
considered as acts of a member of the Knesset ‘in the course of carrying out
his duties or for the purpose of carrying out his duties.’
From
general principles to the specific case
12. The main dispute between the parties in the case before us
concerns the application of substantive immunity to the petitioner’s statements
in the Um Al-Fahem speech and in the Syrian speech. According to the
petitioner, the criminal proceeding that was begun against him because of these
statements should be stopped because they are protected by substantive immunity
under s. 1 of the Immunity Law, and therefore he has no criminal liability for
them. The respondents, on the other hand, are of the opinion that we are
dealing with statements that cannot be regarded as an expression of an opinion
by the petitioner in the course of carrying out his duties or for the purpose
of carrying out his duties as a member of Knesset.
Since we have determined that support for an armed struggle or for acts
of terror against the State of Israel crosses a ‘red line’ that demarcates the
limit of tolerance that Israeli democracy is prepared to show to public
representatives, we should go on to examine whether the statements that lie at
the heart of the indictment that was filed against the petitioner prima
facie constitute support of this kind and therefore should not be subject to
substantive immunity. For this purpose, we should adopt the premise that the
facts of the indictment will be duly proved (see Pinhasi v. Knesset [5], at p. 674), since the
judicial scrutiny that is exercised by the High Court of Justice cannot and
should not enter into the question whether the elements of the offence under
discussion will be proved. This task is the prerogative of the trial court
before which the criminal proceeding is being conducted, and that court usually
also makes the decision on the question of substantive immunity. In the present
case, as we have explained above, we are considering the question of
substantive immunity in consequence of the procedural agreement reached by the
parties, even though the criminal proceeding has already begun. Based on the
aforementioned premise, it can be said that the Um Al-Fahem speech and the
Syrian speech contain a song of praise and approval for the Hezbollah
organization. Since we know that this organization has been declared a terrorist
organization under s. 8 of the Prevention of Terrorism Ordinance (see Yalkut Pirsumim 5749, at p. 3474), and
since we also know that the Prevention of Terrorism Ordinance defines a
terrorist organization as ‘an association of persons who use in its operations
acts of violence that are likely to cause the death or injury of a person, or
threats of such acts of violence,’ it will be difficult not to regard the
statements of the petitioner as support for an armed struggle of a terrorist
organization. In the arguments that the petitioner made before us, he tried to
distinguish between support that he expressed for the Hezbollah organization
and support for acts of violence and terrorism that, according to him, he
rejects utterly, by saying inter alia that the armed struggle
that the Hezbollah organization is conducting is in his opinion a legitimate
struggle of guerilla fighters against an occupying army. These distinctions
that the petitioner is seeking to outline with regard to his expressions, by regarding
them in their overall context, are a matter for the trial court to decide
within the framework of the criminal proceeding being conducted before it. From
a theoretical viewpoint, I do not rule out entirely the possibility that a thin
line can be drawn between support for a terrorist organization and support for
an armed struggle of a terrorist organization. But in so far as the question of
the petitioner’s substantive immunity is concerned, it seems to me that it is
difficult not to regard the remarks of the praise and approval that he heaped
on the activity of the Hezbollah organization, while referring to ‘losses that
[the Jewish people] suffered from the Hezbollah’ and ‘the steadfastness and
persistence and heroism of the leadership and fighters of the Lebanese
“resistance”,’ as support for the armed struggle that this terrorist
organization is conducting against Israel. These statements cross the ‘red
line’ to which I referred and I do not think that there is any basis for giving
the petitioner substantive immunity for them.
13. Notwithstanding
what we have said, it is important to remember and emphasize that there is a
great distance between the finding that a certain statement does not enjoy the
protection of substantive immunity and a criminal conviction for that
statement. This route passes three important stations at which legal and public
discretion should be exercised wisely and responsibly in order to determine
whether there is a basis for bringing the elected representative to trial for
those statements before he is convicted in a criminal trial for them. The first
station is the attorney-general, who has discretion to decide whether certain
statements, even though they do not enjoy substantive immunity, justify a
criminal indictment (see HCJ 6271/96 Be’eri v. Attorney-General [14]; HCJ 588/94 Schlanger v. Attorney-General [15]; see also HCJ 935/89 Ganor v. Attorney-General [16], at pp. 507-511). It
should be noted that the discretion exercised by the attorney-general is not
limited merely to the initial decision as to whether or not to file an
indictment. There may be cases in which the attorney-general will see fit to
stay criminal proceedings that have already been begun, although naturally this
will happen only in exceptional and unusual circumstances that justify such a
step (see HCJ 4723/96 Atiya v.
Attorney-General [17], at
pp. 723-725; R. Gavison, Administrative
Discretion in Law Enforcement: the Power to Stay and Restart Criminal
Proceedings (1991),
at p. 366). The second station on the route leading to indicting an elected
representative for a statement or act that is not subject to substantive
immunity is the deliberations of the Knesset Committee and the decision in the
plenum of the Knesset to lift procedural immunity, in which the Knesset
Committee examines whether the decision of the attorney-general to file an
indictment against a member of the Knesset was made lawfully or whether it was
perhaps tainted by improper reasons arising from political pressure (see Movement for Quality Government in Israel v.
Knesset Committee [7], at paras. 41-43). The last station on the route that we have
outlined is the criminal trial itself, in which the court examines whether the
elements of the offence attributed to the elected representative who is the
accused have been proved and whether he should be convicted of that offence. In
so far as this last station is concerned, and in so far as we are dealing with
offences concerning the freedom of expression, care should be taken not to give
too broad an interpretation to the scope of these offences, so that they do not
excessively violate the political freedoms given to the elected representative
and do not undermine his most essential ‘tools’ — speeches, articles and
interviews (for difficulties raised by the broad formulation of these offences,
see M. Kremnitzer, ‘The Alba case: “Clarifying the Law of Incitement to
Racism”,’ 30 Hebrew Univ.
L. Rev. (Mishpatim) 105 (1999), at p. 142, and
see also CrimFH 8613/96 Jabarin v.
State of Israel [18]).
The ramifications of the
judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] on the petition before us
14. The
last question that should be considered in this petition is the significance of
the decision made by this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] with regard to the
provisions of s. 7A of the Basic Law: the Knesset, according to which the
petitioner should not be prevented from standing as a candidate for the
sixteenth Knesset. It will be remembered that in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] the
indictment that is the subject of this petition was before the court, since the
events to which the indictment refer occurred at the time that the petitioner
was a member of the fifteenth Knesset and the indictment was filed in November
2001 after the petitioner’s procedural immunity was lifted. The judgment in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2],
which relates to the lists and candidates for the sixteenth Knesset, was
therefore given while the indictment was pending (the judgment was given on 9
January 2003, and the reasons were given separately on 15 May 2003), and it
includes a lengthy discussion of the statements of the petitioner that are the subject
of the indictment. The reason why the court did not see fit to prevent the
petitioner from standing as a candidate in the elections for the sixteenth
Knesset under s. 7A of the Basic Law: the Knesset, was that there was no
convincing, clear and unambiguous evidence of the kind required in a case such
as this. As the court said:
‘Indeed, as we have seen…
an essential condition — according to the interpretation of section 7A of
the Basic Law: the Knesset in a host of cases — is that the evidence required
in order to determine that the acts of Member of Knesset Bishara involve a
denial of the existence of the State of Israel as a Jewish state and support
for an armed struggle of terrorist organizations against it should be
convincing, clear and unambiguous in their weight and strength. Only this
strict standard of evidence can resolve the democratic paradox and deny one of
the central rights of democracy, the right to vote and to stand for office. In
placing this criterion before us, we are of the opinion that we have not been
shown evidence of the weight and strength required to satisfy the required
test… We have not been persuaded that there is before us convincing, clear and
unambiguous evidence that Member of Knesset Bishara supports an armed struggle
against the State of Israel (ibid. [2], at pp. 42-43).
Does this
determination tell us that, for the purpose of granting substantive immunity to
the petitioner, the limitation concerning support for an armed struggle of a
terrorist organization also is not satisfied by the events that are the subject
of the indictment? Section 7A(a)(3) of the Basic Law: the Knesset provides that
a person shall not be a candidate in elections to the Knesset if his acts,
expressly or by implication, contain ‘support for an armed struggle of a
hostile state or of a terrorist organization against the State of Israel.’ We
discussed above the correlation and the close connection between the
arrangement in s. 7A of the Basic Law: the Knesset and the arrangement in s. 1
of the Immunity Law, from the viewpoint of the values that these arrangements
are intended to protect and from the viewpoint of the purpose that these
restrictions are intended to achieve. Prima facie, it would therefore appear that once it has been determined for the
purpose of s. 7A(a)(3) of the Basic Law: the Knesset that there is no basis for
preventing the candidacy of the petitioner in the elections because of the
statements at the heart of the indictment, it automatically follows that he
also has substantive immunity under s. 1 of the Immunity Law for those
statements. That is what the petitioner argued before us, while emphasizing
that a different result that relies on these facts can lead to disharmony in
the law. The petitioner also argued that there is no justification for
restricting his actions as a representative of those members of the public who
elected the National Democratic Assembly party to the Knesset, after he
already satisfied the very same tests when he overcame the barrier that s. 7A
of the Basic Law: the Knesset placed in his path.
‘The considerations that
lie at the heart of preventing the commencement of the starting phase (the
registration) are not identical to the considerations that lie at the heart of
preventing the completion of the final phase (the elections). The violation of
values that democracy seeks to protect is far greater in the first stage than in
the second stage… Within the scope of s. 7A of the Basic Law: the Knesset, it
has been held that only in extreme and special cases can a list be prevented
from participating in the elections; that the disqualification is the last
resort; that s. 7A of the Basic Law: the Knesset should be given a strict,
narrow and restrictive interpretation. This interpretive approach is desirable.
It allows a very narrow scope for preventing the participation of a list in the
elections. The additional power to disqualify a list that is found in s. 5 of
the Political Parties Law should therefore have a very narrow field of
operation. If the power to disqualify a list under s. 7A of the Basic Law: the
Knesset is narrow, then the power to disqualify a list under s. 5 of the Political
Parties Law is very narrow indeed, and the difference between them is narrower
still’ (ibid. [10], at pp. 69-70).
According
to this tiered approach towards the tests that should be applied with regard to
the disqualification of a political party or a candidate from participating in
the democratic process, President Barak was of the opinion that it is indeed
possible that it will be decided to allow the registration of a party under the
tests set out in s. 5 of the Political Parties Law, but that the same party
will not be allowed to compete in the elections under s. 7A of the Basic Law:
the Knesset. In his words: ‘It is possible to conceive of a party whose
registration will not be disqualified, but whose participation in the elections
will not be allowed’ (see Yassin v.
Parties Registrar [10], at p. 68, and for a similar approach, which distinguishes
between the right of a party to participate in the elections and recognizing
its power to realize certain aspects of its manifesto, see HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [19], at p. 800).
Whether or
not we accept this tiered approach in so far as it concerns the correlation
between s. 5 of the Political Parties Law and s. 7A of the Basic Law: the
Knesset (for a dissenting opinion, see Isaacson v. Parties Registrar [11], at pp. 539-540, and see and cf. EA 2600/99 Erlich v. Chairman of Central Elections
Committee [20], at
p. 47), it would appear at any rate that we should recognize the manifest
difference between these provisions and the restrictions that apply to the
scope of the substantive immunity provided in s. 1 of the Immunity Law. As I
have said, the restrictions concerning substantive immunity originate in the
arrangements in s. 5 of the Political Parties Law and s. 7A of the Basic Law:
the Knesset, since all of these legislative arrangements have a common purpose
and similar basic values that they are seeking to protect. Notwithstanding,
there is a significant difference between the arrangement concerning
substantive immunity and the two other arrangements. Not allowing the
registration of a political party and preventing a party or any of its
candidates from participating in elections irreversibly violate the basic
rights of the individual. A refusal to register a political party under s. 5 of
the Political Parties Law violates the freedom of political association, which
expresses the right given to the individual in a democracy to decide and
influence his fate in the country in which he lives. Placing a barrier before a
party or its candidates that prevents them from competing in elections deals a
mortal blow to the right to vote and to stand for office, which is also one of
the basic rights in a democracy (see Y. Mersel, The Constitutional Status of Political Parties (2005), at pp. 49-54).
These two arrangements therefore violate the freedom of political expression
that is realized by the possibility given to the individual in a democracy to
form an association in order to further his political views and the possibility
of trying to persuade others to vote for him as a representative in parliament
in order to act to realize the opinions and ideas in which he believes. The
importance of political parties and the importance of the right to vote in this
context were discussed by Prof. Y. Galnor when he said that ‘there is no
democracy without parties and there is no true democracy when the citizen is
not given a possibility of choosing between two or more parties, as well as
additional opportunities for political participation’ (Y. Galnor, ‘The
Political Parties Law — Its Contribution to the Political System,’ A Legal Framework for the Activity of
Political Parties In Israel (The Israeli Association for Parliamentary Problems, the Knesset,
1988), at pp. 29, 30; Mersel, The
Constitutional Status of Political Parties, supra, at pp. 45-48). Thus we
see that a refusal to register a political party inflicts a multi-faceted
violation of a spectrum of the rights that reflect political association. Less
serious a violation is caused by preventing a list of a party’s candidates or
one of its candidates from participating in elections, but even on this level
we are concerned with a mortal blow to the political freedoms of the
individual. At the lowest level of this scale, and at a considerable distance
from the barriers that were established in s. 5 of the Political Parties Law
and in s. 7A of the Basic Law: the Knesset, we can place the denial of
substantive immunity. We are concerned with a candidate who has already been
elected to the Knesset and is holding office in it as one of its members.
Within the framework of this position, he has the possibility of addressing the
Knesset, of tabling questions, putting forward matters for the agenda and draft
laws, being a member of the Knesset committees and voting on laws. Thus the
Knesset member realizes de facto his political freedoms and
those of the persons who voted for him. Moreover, not granting substantive
immunity is a decision that by its very nature is limited to the circumstances
of a specific case that gives rise to a question of immunity, and it does not
result in a sweeping denial of the rights of the Knesset member and the ways in
which he may act and express himself that come with his position. An additional
material difference between the arrangements in s. 5 of the Political Parties
Law and s. 7A of the Basic Law: the Knesset derives from the fact that the
violation to the freedom of expression because substantive immunity is not
given to a member of the Knesset is a violation after the event for remarks
that have already been made. The smaller degree of violation caused by imposing
sanctions after the event in matters concerning the freedom of expression was
discussed by
‘A prohibition ab initio prevents the actual publication and causes harm to
the freedom of expression, damage that sometimes cannot be repaired in the
future. By contrast, holding a criminal proceeding cannot “stop” the
expression, and it allows the holding of a fair trial that will ultimately determine
the liability for the publication, and thereby “slow down” the desire to make a
new publication’ (ibid. [21], at p. 297; for the
same approach in civil cases, see also CA 214/89 Avneri v. Shapira [22], at pp. 864-870).
With
regard to the scale that we are discussing, it can be said that the
restrictions in s. 5 of the Political Parties Law and in s. 7A of the Basic
Law: the Knesset ab initio prevent the freedom of
political expression of the individual, whereas the restrictions that limit the
scope of substantive immunity apply entirely after the event, i.e., in the
stage after the member of the Knesset has realized his freedom of expression
and the question under consideration is whether there is a basis for allowing
him to be brought to trial for it. The scale of violations in each of the
arrangements that we have described — s. 5 of the Political Parties Law,
s. 7A of the Basic Law: the Knesset and finally s. 1 of the Immunity Law —
justifies a difference in applying the ‘red lines’ that are common to all of
these arrangements. This leads to the conclusion that there can indeed be cases
in which it will be decided not to prevent a party or a specific candidate from
standing for election to the Knesset under s. 7A of the Basic Law: the Knesset,
but the same facts may lead to the conclusion that for the purpose of
substantive immunity a ‘red line’ has been crossed in such a way that there is
a justification for exposing the member of the Knesset to a criminal proceeding
for the opinions that he expressed or the acts that he committed.
16. Such
is the case before us. In Central
Elections Committee for the Sixteenth Knesset v. Tibi [2] the court addressed
the strength of the violation of the political freedoms of the individual where
a party or a candidate is prevented from competing in the elections to the
Knesset. In emphasizing the major effect of this violation and the strict and
restrictive approach that should be adopted when erecting a barrier to
competing in the election under s. 7A of the Basic Law: the Knesset, the court
determined a series of interpretive criteria and tests that reflect this
restrictive approach, which are as follows:
‘First, considering the purposes of a list of candidates
means considering “dominant characteristics that are
placed in a central position among the
aspirations or the activities of the list” (EA 1/88 Neiman v. Chairman of the Elections Committee
for the Twelfth Knesset [23], at p. 187).
“The power granted in s. 7A
is not designed for matters that are marginal and whose effect on ideology or
policies as a whole is not significant and serious. This means phenomena… that
can be described as dominant characteristics that are placed in a
central position among the aspirations or activities of the
list” (ibid. [23]).
We are therefore concerned with
purposes that are a “dominant” goal (in the language of
In view of
these general requirements, the court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] turned to examine
whether there were grounds for disqualifying the candidacy of the petitioner
from participating in the elections to the Sixteenth Knesset. This examination
also included, as aforesaid, a consideration of the statements that were the
basis for the indictment and that are the focus of the petition before us.
Ultimately, as we have already said, the court held in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] that
the evidence presented before it left room for doubt as to whether that
evidence really was capable of indicating in a convincing, clear and
unambiguous manner that the petitioner did indeed support an armed struggle
against the State of Israel. The court further held that the doubt in this
regard should operate in the petitioner’s favour. For this reason, and for
other reasons concerning the other restrictions in s. 7A of the Basic Law: the
Knesset, the court came to the conclusion that the petitioner should not be
prevented from competing in the elections for the Sixteenth Knesset (Central Elections Committee for the Sixteenth
Knesset v. Tibi [2], at
pp. 40-43).
17. The
premise for considering the scope of substantive immunity pursuant to s. 1 of
the Immunity Law is completely different from the criteria that the court
adopts when it considers whether to disqualify a candidate for the elections
under s. 7A of the Basic Law: the Knesset. First, the question concerning
giving substantive immunity naturally arises with regard to a specific case and
there is no need to show that we are speaking of dominant characteristics that
are placed in a central position among the
activities or the statements of the member of the Knesset in general.
Notwithstanding, it is not superfluous to point out that in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] the
court held that the actions and expressions attributed to the petitioner, and
especially his statements as a member of the Fifteenth Knesset in the two
incidents that are the subject of the indictment, are characterized inter alia by support for an armed struggle against the State
of Israel, and it also held that this purpose is placed in the centre of the
petitioner’s actions, as a dominant purpose that is put into practice in
recurrent activity and with great intensity. Second, for the purpose of
preventing participation in the elections under s. 7A of the Basic Law: the
Knesset, ‘convincing, clear and unambiguous evidence’ must be presented with
regard to the purposes and acts of the candidate or the list. By contrast, the
premise for the purpose of determining the scope of substantive immunity is, as
aforesaid, that the facts of the indictment will indeed be proved (see Pinhasi v. Knesset [5], at p. 674). On the
basis of this premise, the court should examine whether there are grounds for
granting the member of the Knesset substantive immunity, or whether perhaps we
are dealing prima facie with the crossing of the
‘red lines’ that underlie the legal system, for which substantive immunity
should not be given.
18. I
admit and do not deny that the conclusion that a member of the Knesset should
not be given substantive immunity for a political speech, which is normally the
natural work tool at his disposal when carrying out his duties, is not at all a
simple one. But in my opinion there is no alternative in view of the fact that
we are dealing with the expression of an opinion, on two occasions, that was
formulated and considered in advance, and that falls in the centre of the
prohibited area — support for an armed struggle of a terror
organization — and a very long way beyond the ‘red line’ established by
Israeli democracy to protect its very existence. Indeed, terror and democracy
can be compared to fire and water; they cannot exist side by side. The fire of
terror has no place in a democracy. As President Barak said in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2]:
‘Democracy is based on dialogue,
not on force; on persuasion, not on violence. Someone who is not prepared to
abide by the “rules” of democracy himself cannot be allowed to make the
argument that others should follow these rules in dealing with him’ (ibid. [2], at p. 24).
President Barak further
said that:
‘Democracy is allowed… to
defend itself against anyone fighting it in an armed struggle. It is one thing
to aspire to change social arrangements by means of the legitimate tools that
democracy makes available to a list of candidates; it is another thing to
aspire to change arrangements by means of support for an armed struggle against
the state’ (ibid. [2], at pp. 26-27).
19. The
other reasons raised by the petitioner in the alternative, which concern the
proceeding of lifting his procedural immunity, do not reveal any real ground
for our intervention, and a study of the minutes of the deliberations that were
held by the Knesset Committee and by the plenum show that, contrary to the
arguments raised by the petition, comprehensive, objective and exhaustive
deliberations were held, and no defect can be found in these.
Conclusion
20. For
all of the reasons set out above, I propose to my colleagues that we deny the
petition without any order for costs.
I regret that
I am unable to agree with the opinion of my colleague Justice E. Hayut. If my
opinion is accepted, we will decide that the petitioner has substantive
immunity against the indictment that was filed against him in the Nazareth
Magistrates Court. My colleague laid down ‘red lines’ beyond which the laws of
immunity do not apply. According to her approach, the petitioner’s case crosses
these lines, and therefore the question of substantive immunity does not arise
at all in his case. My opinion is different. In my opinion, the petitioner does
not cross these lines and also succeeds in falling within the scope of
substantive immunity. I will discuss each of these two aspects separately.
Amendment 29 of the Immunity
Law
1. I am in agreement with my colleague to a large
extent. I accept three of her main findings in her opinion. First, I accept that the Immunity,
Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002
(hereafter — ‘Amendment no. 29), which provides, inter alia, that a statement of a member
of the Knesset that contains support for an armed struggle of a terror
organization should not be regarded as an expression of an opinion that is made
by a member of the Knesset in the course of carrying out his duties or for the
purpose of carrying out his duties, is a ‘clarifying amendment,’ i.e., that it
is declarative. It reflects the legal position that also prevailed before the
amendment. This amendment enshrines in the Immunity, Rights and Duties of
Knesset Members Law (hereafter — ‘the Immunity Law’) similar restrictions
to the restrictions imposed upon the registration of political parties (s. 5 of
the Political Parties Law, 5752-1992) and the participation of candidates and
lists in elections to the Knesset (s. 7A of the Basic Law: the Knesset). These
restrictions determine the ‘red lines,’ in the language of my colleague, which
a member of the Knesset should not cross. A member of the Knesset who crosses
these lines should not be regarded to have acted in the course of carrying out
his duties or for the purpose of carrying out his duties. Second, I accept my colleague’s
position, which I also expressed in Pinhasi v. Knesset [5], that for the purpose of analyzing a claim of immunity we start
with the premise that the facts of the indictment will be duly proved (see Pinhasi v. Knesset [5], at p. 674). Third, I accept the position of my colleague that there
is a difference between the burden of proof required for disqualification of a
list from competing in the elections and the burden of proof required in order
to hold that a certain expression does not fall within the scope of substantive
immunity. This distinction derives from the fact that preventing someone ab initio from competing in the elections involves a much
more severe violation of political freedoms than the violation caused to these
freedoms as a result of depriving a member of the Knesset of substantive
immunity. But accepting these three premises does not lead to my colleague’s
conclusion.
2. The petitioner before us is charged with an
offence of support for a terrorist organization (in the form of uttering
statements of praise and approval). Amendment no. 29 provides that support for an armed struggle of a terrorist
organization is what falls outside the limits of substantive immunity. The two
are not entirely identical. Amendment no. 29 does not provide that all support
or every utterance of statements of praise and approval for a terrorist
organization falls outside the scope of substantive immunity. Therefore, even
though I accept that Amendment no. 29 is a clarifying amendment, and even if I
assume, as we should assume at this stage, that the indictment against the
petitioner will be proved, this is still insufficient for deciding the question
whether or not the petitioner has substantive immunity against this indictment.
In order to decide this question, we must ascertain whether the petitioner’s
statements amount to support for an armed struggle of a terrorist organization.
Prima facie, the proper stage for
ascertaining this is the stage of the preliminary arguments within the
framework of the criminal proceeding before the trial court. Within the
framework of this proceeding, the parties may raise arguments and present
evidence on the question whether the statements of the petitioner amount to
support for an armed struggle of a terrorist argument or not, and the court can
give its determination on the question of substantive immunity on the basis of
the arguments and evidence so presented. My opinion therefore is that this
question should be determined at the stage of the preliminary arguments in the
Nazareth Magistrates Court. But since the Nazareth Magistrates Court decided
not to determine this question, and since the parties before us agreed that we
should consider and decide the question on its merits, we will therefore
consider it and decide it on the basis of the arguments and the evidence
brought before us.
3. Is it possible to regard the statements of the
petitioner as containing support for an armed struggle of a terrorist organization?
If the answer to this question is yes, our deliberations will end with the
conclusion that the remarks of the petitioner fall within the scope of the
prohibition provided in Amendment no. 29, and therefore the petitioner does not
have substantive immunity. If the answer to this question is no, our conclusion
will be that Amendment no. 29 does not apply to the case before us, and we
shall be required to examine whether the statements of the petitioner are
protected by substantive immunity in accordance with the tests that we usually
apply in this regard. Do the remarks of the petitioner amount to support for an
armed struggle of a terrorist organization? This is not the first time that
this question has arisen before us. This question was considered in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2]. That
case considered, inter alia, the decision of the
Central Elections Committee for the Sixteenth Knesset to prevent the petitioner
and the list led by him from participating in the elections. That decision was
based on two grounds. First, the Elections Committee
was of the opinion that the petitioner satisfied the ground provided in s.
7A(a)(1) of the Basic Law: the Knesset, which concerns the disqualification of
the candidacy of a person in the elections, if his acts involve a denial of the
existence of the State of Israel as a Jewish state. Second, and this is the main issue in our case, it
decided that the petitioner satisfied the ground provided in s. 7A(a)(3) of the
Basic Law, which concerns the disqualification of the candidacy of a person in
the elections, if his acts involve support for an armed struggle of a terrorist
organization against the State of Israel. The main evidence on which the
conclusion of the Elections Committee was based with regard to the second
ground was the statements of the petitioner in the Um Al-Fahem speech and the
Syrian speech, which are the statements that lie at the heart of the indictment
that is the focus of this petition.
4. These decisions of the Elections Committee
were submitted for our approval pursuant to s. 7(a) of the Basic Law. We
decided, by a majority, that the decision of the Elections Committee should not
be approved. We held that we were not persuaded, to the degree of certainty required
in cases of election disqualification, that the statements of the petitioner
amounted to support for an armed struggle of a terrorist organization. I
discussed in that case the distinction between general support and support for
an armed struggle of a terrorist organization:
‘Does Knesset Member
Bishara support an armed struggle of a hostile state or of a terrorist
organization against the State of Israel? It should be noted that the question
before us is not whether Knesset Member Bishara supports a terrorist
organization. This question is the focus of the criminal proceeding that is
being conducted against him, and we will express no opinion on this matter. The
question before us is whether Knesset Member Bishara supports an armed struggle
of a terrorist organization. As we have seen, the argument of Knesset Member
Bishara is that his liberal-democratic outlook implies opposition to violence
and an armed struggle. According to his approach, it is possible to oppose what
he calls “occupation” without adopting an armed struggle. Therefore he opposes
any harm to civilians’ (Central
Elections Committee for the Sixteenth Knesset v. Tibi [2], at p. 42).
It should
be noted that the chairman of the Elections Committee for the Sixteenth
Knesset,
‘
This was
also our conclusion in Central
Elections Committee for the Sixteenth Knesset v. Tibi:
‘We are of the opinion that we have not been shown evidence of the weight
and strength required to satisfy the required test… We have not been persuaded
that there is before us convincing, clear and unambiguous evidence that Member
of Knesset Bishara supports an armed struggle against the State of Israel’ (ibid. [2], at p. 43).
5. The distinction between general support for a
terrorist organization, by way of uttering statements of praise, and support
for an armed struggle of a terrorist organization is not merely a semantic
distinction. It is implied by the express language of the law. It is also
implied by its purpose. This distinction reflects the attempt of the legislature
to balance the desire to protect the foundations of the state against the
desire to protect basic political freedoms such as the right to vote and to
stand for office (in so far as s. 7A of the Basic Law is concerned) and the
freedom of parliamentary expression (in so far as Amendment no. 29 is
concerned). Admittedly, I accept that there is a difference between the burden
of proof required for the purpose of disqualifying a list from participating in
the elections and the burden of proof required for determining that a certain
expression is not protected by substantive immunity. This difference derives
from the fact that preventing someone from standing for office in the elections
is a more serious and prospective violation of political freedoms than the
violation of those freedoms that is brought about as a result of a
determination that a certain expression is not protected by substantive
immunity, which is a more limited violation in its scope and is applied
retrospectively. Notwithstanding, the extent of this difference should not be
exaggerated. The distance between convincing, clear and unambiguous evidence
(which is required for the red line of which my colleague speaks) and the
evidence required in order to deny substantive immunity (within the framework
of a criminal proceeding) is not great at all.
6. My opinion is that the respondents have not
proved before us, within the framework of considering the issue of substantive
immunity as a preliminary argument in the criminal trial — just as they
did not prove in Central
Elections Committee for the Sixteenth Knesset v. Tibi [2] — that the
remarks of the petitioner contain support for an armed struggle of a terrorist
organization (as distinct from support for a terror organization by way of
uttering statements of praise and approval). Admittedly, had the hearing of
this question taken place before the trial court, the respondents could have
presented additional evidence that supports their position. The petitioner
could also have added to the evidence and arguments that were heard by the
Central Elections Committee and by this court in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2]. But
this was not done. The evidence before us is merely certain extracts from the
speeches made by the petitioner. This evidence was fully presented before us in
Central Elections Committee
for the Sixteenth Knesset v. Tibi [2], and nothing has been added to it. There is
also nothing new in the arguments of the parties. In the case before us I have
not been persuaded that the statements of the petitioner can be regarded as
containing support for an armed struggle of a terror organization, to the
degree of proof required for determining that they cross those ‘red lines’
beyond which there is no substantive immunity. In Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] we
held:
‘We have not been persuaded
that there is before us convincing, clear and unambiguous evidence that Member
of Knesset Bishara supports an armed struggle against the State of Israel. In
this matter also, we should not ignore the extensive material that was
submitted to us. Notwithstanding, it is insufficient to satisfy the critical
“mass” of evidence that is required in this regard. Indeed, we do not deny that
we have some doubt in our minds. But this doubt should work — in a
democracy that seeks freedom and liberty — in favour of the freedom to
vote and stand for office’ (ibid. [2], at p. 43).
In the
petition before us — which is being considered within the framework of the
criminal proceeding — I have also not been persuaded that the petitioner
supports an armed struggle against
7. Thus we see that even though I accept my
colleague’s position that Amendment no. 29 of the Immunity Law is a declarative
amendment, and even if we assume, as we should in a petition of the kind before
us, that the indictment against the petitioner will be proved, this will not be
sufficient to lead to the conclusion that the remarks of the petitioner amount
to support for an armed struggle of a terrorist organization. Therefore, this
will be insufficient for reaching the conclusion that Amendment no. 29 applies
in our case. Admittedly, this will lead us to the conclusion that the
petitioner committed an offence of uttering statements of praise and approval
for a terrorist organization. But this offence does not fall within the express
limitations that are imposed on substantive immunity in Amendment no. 29. We
are dealing in this context with an ‘ordinary’ offence that is subject to the
tests developed in the case law of this court concerning the scope of
substantive immunity. I will now turn to examine these tests.
Section 1(a) of the Immunity
Law
8. Does the petitioner have substantive immunity
with regard to his statements? Were the petitioner’s statements that are before
us made ‘in the course of carrying out his duties or for the purpose of
carrying out his duties as a member of the Knesset’? The expression ‘in the
course of carrying out his duties or for the purpose of carrying out his duties
as a member of the Knesset’ in s. 1(a) of the Immunity Law should be given the
meaning that realizes its purpose. My colleague discussed extensively the
normative framework of substantive immunity and the purposes underlying it. I
agree with those remarks. As my colleague says, substantive immunity is
intended, first and foremost, ‘to ensure that a member of the Knesset can
properly discharge his duties and represent the public that elected him by
giving free and full expression to his opinions and outlooks, without concern
or fear’ (para. 6 of my colleague’s opinion). This immunity was not given to
members of the Knesset for their own benefit. It is not a sovereign privilege
that the member of the Knesset enjoys by virtue of his exalted position.
Substantive immunity is given to members of the Knesset in order to guarantee
essential public interests. First, this immunity is
essential in order to guarantee the right of all citizens to full and effective
political representation. Substantive immunity protects the right of all
citizens to have their opinions and outlooks heard, through their elected
representatives, in the various frameworks of public debate in general, and in
parliament in particular. This protection is essential mainly for citizens who
are members of minority groups in society. In this sense, substantive immunity
also furthers civil equality, in that it protects even the right of members of
minority groups in society to full and effective political representation, and
it protects them by protecting the member of the Knesset, who represents their
interests and their opinions, against the power of the majority. Second, substantive immunity is essential in order to
guarantee a free marketplace of ideas and opinions. Here too this immunity is
especially important when we are speaking of opinions and ideas that are offensive
or outrageous, and it is especially required for elected representatives who
express opinions that are regarded by most of the public as such. Indeed,
‘freedom of expression is also the freedom to express dangerous, offensive and
perverse opinions, from which the public recoils and which the public hates’ (Kahane v. Broadcasting Authority Management
Board [21], at
p. 279). Third, following from the
aforesaid, substantive immunity is essential in order to guarantee the
democratic character of the government. Thus we see, as my colleague says, the
purposes underlying substantive immunity are of different kinds. They are
intended to protect basic political freedoms. They are intended to allow the
proper functioning of the legislature. They express a desire to ensure the
independence and the freedom of action of members of the Knesset. They are
intended to strengthen democracy. On the other hand, we should not ignore the
other (general) purposes of the Immunity Law. Like every other law, it is
intended to realize the rule of law — including the rule of law among the
members of the legislature — and equality before the law. How should these
conflicts be resolved? The proper balancing point between these purposes is the
balancing point that is reflected in the ‘margin of natural risk’ test that my
colleague discussed. A member of the Knesset will have substantive immunity
only in those cases in which the unlawful act falls within the scope of the
margin of risk that the lawful activity as a member of the Knesset naturally
creates (see Pinhasi v. Knesset [5], at pp. 686-687).
9. My opinion is that the ‘margin of natural
risk’ test is satisfied in the circumstances before us. I did not reach this
conclusion lightly, and it is not an obvious one. Admittedly, in my opinion we
are dealing with a ‘difficult case’ for applying the margin of natural risk
test. Admittedly, the statements of the petitioner and the circumstances in
which they were made are, in my opinion, close to the line beyond which it
would not be possible to say that they fall within the scope of the natural risk
involved in carrying out the duties of a member of the Knesset.
Notwithstanding, my opinion is that in the circumstances of the case, and in
view of the other relevant circumstances of this case, the proper conclusion is
that the natural risk test is satisfied by the petitioner before us. This
position of mine is based on three reasons. First, the
statements attributed to Knesset Member Bishara were made in political speeches
that he made. The speeches dealt with broad political subjects. These speeches
were long ones and many things were said in them. Inter alia, they included the remarks that are attributed to
the petitioner in the indictment. It cannot be said that these remarks were the
main part of the speeches. It cannot be said, and the respondents did not even
argue this before us, that the main purpose of these speeches was to express
support for a terrorist organization. The statements made in this context
constitute merely a part of all the remarks made by the petitioner. Second, the offence with which the petitioner is charged
is an offence that relates to the freedom of expression. This fact is also
important when determining the limits of the ‘margin of natural risk,’ in view
of the centrality of speeches in carrying out the duties of a member of the
Knesset. Third, in view of the broad
language in which offences concerned with the freedom of speech — such as
defamation, incitement, rebellion and making statements of praise for a
terrorist organization — are usually couched, there is a concern that if
members of the Knesset will be exposed to these criminal indictments, this will
reduce their ability to express themselves without fear, even in cases where
their remarks do not constitute a criminal offence. This result will seriously
harm the freedom of parliamentary expression and the basic political freedoms
associated therewith.
‘Membership of the Knesset
gives the members of the Knesset immunity for prohibited actions that fall
within the scope of “professional risks.” Someone who is in the business of
making speeches has a high probability of being caught violating prohibitions
concerning defamation or incitement. Substantive immunity was intended to give
him immunity within the limits of this risk… the purpose of this substantive
immunity is to allow the member of the Knesset to express his opinion freely,
without him being prevented from making lawful remarks that his position
requires him to make, merely because of the fear that he may make an
unfortunate statement, and he may be carried away in making permitted and
lawful remarks into prohibited and unlawful ones’ (ibid. [5]).
Indeed,
offences that concern the freedom of expression are by their very nature an
integral part of the role of a member of the Knesset. Political expression —
speeches, articles and interviews — are the main tools of the member of
Knesset. It is through political expression that a member of the Knesset is
able to express his outlook and the outlook of the people who voted for him on
public matters. This is the main role of the member of Knesset. A member of
Knesset who speaks on political issues is carrying out his main parliamentary
activity. Protecting a member of the Knesset in this activity is the main
purpose of substantive immunity. Whoever engages in political expression as a
main part of his job is inevitably in great danger of falling foul of the
prohibitions concerning the freedom of speech, such as incitement, rebellion
and uttering statements of praise for a terror organization. There are two combined
reasons for this. First, because of the broad and
comprehensive language of these criminal prohibitions (concerning the broad and
comprehensive language of the prohibition against incitement, see, for example,
CrimA 2831/95 Alba v. State of Israel [25]). The offence with
which the petitioner is charged is a very broad one. Section 4 of the
Prevention of Terrorism Ordinance, with which the petitioner is charged,
provides that:
|
‘Supporting a terrorist organization |
… (b) who publishes, in writing or orally, words of praise
or approval for, or a call to help or support, a terrorist organization; or’ |
|
|
… |
|
|
(g) who commits an act that contains an expression of
identification with a terrorist organization or approval for it, by raising a
flag, displaying a symbol or slogan or by uttering an anthem or slogan, or
any act of similar expression that clearly displays such identification or
approval, all of which in a public place or in such a manner that persons who
are present in a public place can see or hear such an expression of
identification or approval; |
|
|
shall be charged with an offence…’. |
According to Professor Kremnitzer:
‘The difficulty is that the
expressions “praise,” “encouragement” and “approval” are very broad… Does a
statement that “Had it not been for the ‘Intifadeh,’ the
Second, members of the Knesset
frequently speak on confrontational matters, in a manner that may be seen as
provocative and outrageous by some members of society. This is particularly
true in Israeli society (see. E. Benvenisti, ‘Regulating the Freedom of
Expression in a Polarized Society,’ 30
11. My
conclusion is therefore that the offence of support for a terrorist
organization was committed by the petitioner — if it was indeed committed,
which we are assuming for the purpose of this petition — as an integral
part of the legitimate activity of expressing an opinion on political issues,
and as an ancillary or secondary issue thereto. It follows that in my opinion
the petitioner has substantive immunity with regard to the statements for which
the indictment was filed.
Summary
13. Finally,
I would point out that I have not held in my opinion that the statements of the
petitioner are desirable ones. Quite the contrary, the assumption that I have
made was that in his statements the petitioner committed a criminal offence of
support for a terrorist organization. Indeed, the petitioner’s remarks are
problematic, and they are very offensive to the ear. But I have found that they were uttered by the petitioner in the course
of carrying out his duties, and for the purpose of carrying out his duties, as
a member of the Knesset. We should protect and defend the ability of members of
the Knesset to carry out their duties without fear and trepidation. Substantive
immunity is intended to provide this protection, which is a public interest of
the first degree. This protection is essential for the existence of basic
political freedoms. It is essential for the existence of Israeli democracy.
If my opinion is heard, we will grant the petition, hold that the
petitioner has substantive immunity that cannot be lifted, and therefore we
will make the order nisi absolute, in the sense that the criminal proceedings that are taking
place against the petitioner will be cancelled.
Justice E. Rivlin
1. I have studied the opinions of my colleagues,
President A. Bark and Justice E. Hayut. My colleague the president is of the opinion
that the petitioner has substantive immunity for the statements that are the
subject of the indictment against him. My colleague Justice Hayut is of the
opinion that the petitioner’s case does not fall within the scope of
substantive immunity. I agree with the conclusion of my colleague the
president. In my opinion too the statements of the petitioner fall within the
scope of substantive immunity. But I would like to add the following remarks in
this regard.
My colleagues
disagree with regard to a fundamental issue: does the case of the petitioner go
beyond the ‘red lines’ of substantive immunity, so that there is no longer any
need or basis to adopt the balancing tests laid down in case law, including the
‘natural risk test,’ which is the opinion of my colleague Justice E. Hayut, or,
despite the difficulty raised by this case, should it too ultimately be decided
by the balancing tests that have been laid down in the case law of this court
over the years with regard to the question of immunity, which is the opinion of
my colleague the president? A decision on this issue, in one direction or the
other, requires an examination of the significance of Amendment no. 29 of the Immunity
Law (the Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29),
5762-2002 (hereafter — ‘Amendment no. 29)). But this decision derives, so
it would seem, also from an ethical outlook on the proper way in which a
democracy, and Israeli democracy in particular, should contend with statements
of the kind uttered by the petitioner. Both with regard to the statutory
question — the effect of Amendment no. 29 — and with regard to the
ethical question I find myself in agreement with my colleague the president,
for his reasons and for reasons of my own.
2. The indictment that was filed against the
petitioner attributes to him offences arising from statements that he made. It
concerns, as my colleagues explained in their opinions, two speeches that the
petitioner made, for which he was indicted on two offences of support for a
terrorist organization, pursuant to ss. 4(a), 4(b) and 4(g) of the Prevention
of Terrorism Ordinance, 5708-1948. The
question whether the petitioner’s statements are protected by substantive
immunity follows from the question whether they were made ‘in the course of
carrying out his duties, or for the purpose of carrying out his duties, as a
member of the Knesset’ (s. 1 of the Immunity, Rights and Duties of Knesset
Members Law, 5711-1951). This is not a simple question. The petitioner, a
member of the Knesset in
3. Every society, and especially a democracy, is
required to determine its credo with regard to the question of how to realize
the values underlying it, without endangering those selfsame values and its
very existence. This determination is a difficult one. It requires a delicate
balance, which sometimes involves a considerable amount of uncertainty in its
application. Section 5 of the Political Parties Law, 5752-1992, and s. 7A of
the Basic Law: the Knesset, as they have been interpreted in the case law of
this court, seek to determine such a balance. These sections determine that
someone who takes part in the democratic process must commit himself to the
rules of democracy. Indeed, democracy — so we have been taught — is
entitled to protect itself against those who seek to destroy it. ‘In order to
prove its viability, democracy does not need to commit suicide’ (per
But case law
with regard to the implementation of these sections — and we are referring
mainly to case law concerning s. 7A of the Basic Law: the Knesset —
reflects the great complexity of life and the fact that the statutory provision
concerning the boundaries of democracy do not resolve all of the complexities. Time and again this court has
considered the cases of persons, political parties and list of candidates who
challenged these boundaries, stepped on the borderline and sometimes crossed
over it. The court, and with good reason, consistently maintained the delicate
balance between all of the considerations. In following this path, the court
sought to uphold, in so far as possible, the right to vote and to stand for
office, which is a ‘constitutional right of the first degree’ (Welner v. Chairman of Israeli Labour Party [19], at p. 800). Because
of this approach, the court adopted a restrictive interpretation of s. 7A of
the Basic Law: the Knesset, and it held that the section should only be applied
in extreme circumstances. To this end, various interpretive criteria were laid
down, and these were summarized in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] in the following
terms:
‘First, considering the purposes of a list of candidates
means considering “dominant characteristics that are
placed in a central position among the
aspirations or the activities of the list”…
“The power granted in s. 7A
is not designed for matters that are marginal and whose effect on ideology or
policies as a whole is not significant and serious. This means phenomena… that
can be described as dominant characteristics that are placed in a
central position among the aspirations or activities of the
list”…
We are therefore concerned with
purposes that are a “dominant” goal… second, the dominant and central purposes
of the list — and to the same extent, the acts of a candidate for the
elections within the framework of a list of candidates — are derived both
from express declarations that are directly stated and also from reasonable
conclusions that are clearly implied… third, purposes
that are of a theoretical nature are insufficient. It must be shown that the
list of candidates “is acting in order to realize its purposes and to convert
them from theory into practice”… There must be “activity in the field” that is
intended to put the theory of the list’s purposes into practice. This activity
needs to be repeated. Sporadic activity is insufficient. The activity needs to
adopt a serious and extreme form of expression from the viewpoint of its
intensity… Indeed, democracy does not take action against someone who does not
take action against it. This is a defensive democracy, which does not prevent
participation in the elections of a list of candidates merely because of the
purposes of the list, but it defends itself against acts that are directed
against it. Finally, the evidence proving the
purposes and the acts that result in a list of candidates or a candidate not
being allowed to participate in the elections to the Knesset needs to be
“convincing, clear and unambiguous”…’ (references omitted).
4. The
broad approach, which seeks to uphold basic freedoms in so far as possible,
does not necessarily conflict with the outlook of defensive democracy. On the
contrary, it arises from precisely the same ideological outlook. The free
marketplace of ideas in general, and its expression in the house of elected
representatives in particular, is essential for preserving democracy. Limiting
the possibility of voting and standing for office in the Knesset, and thereby
expressing opinions and outlooks, was not intended to suppress — and
certainly not to veto — opinions and outlooks. On the contrary,
participation in the democratic process often prevents anti-democratic
activity; and the freedom of expression, which is the main tool that is given
to members of the Knesset when carrying out their duties, is frequently the antithesis
of violence, outbreaks of hostility or the feeling of persecution and
discrimination. This was discussed by
‘Another aspect of the case for democracy concerns the
important contribution of the freedom of expression to social stability, and
consequently also to democracy… By virtue of freedom of expression social
pressure finds its expression in negotiation, and not in action. The release of
social pressure finds expression on the peaceful path of expression rather than
on the violent path of action. Society, which often sits idly by and does not
foresee hidden troubles, prepares itself for future troubles, when it becomes
aware of the dangers that the freedom of expression brings out into the open.’
If a person is prevented from
speaking out, this may lead to undermining the barrier that holds him back from
resorting to violence. Again, broad freedom must not become a recipe for
destruction. Limits must be set, but it is not for no reason that we have over
the years set the limits with care and sensitivity, in the belief that usually
a problematic statement is better than a problematic action, and defensive
democracy often defends itself well if it allows the strident voices in it to
be heard, so that they become known and, where necessary, will be required to
give an accounting in the marketplace of statements and opinions. Indeed, the
remedy for speech is to reply with speech, and the remedy for support of an
opinion is to give support to a contrary opinion. This position reflects the
basic commitment of the Israeli public to the values of democracy (see also E.
Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ 30
5. Even the petitioner, despite the problematic
remarks in his two speeches under discussion, and additional remarks that he
has made over the years, clears the barrier of s. 7A of the Basic Law: the
Knesset, even if it is by a narrow margin. The
6. The question of the connection between
preventing participation in the elections under s. 7A of the Basic Law: the
Knesset (and s. 5 of the Political Parties Law) on the one hand and substantive
immunity on the other has engaged the court in the past, but no firm
determination was made. In Miari v.
Knesset Speaker [4],
‘The essence
of the argument may be that when s. 7A was enacted, the acts described therein
became inconsistent with the actions of a member of Knesset and in any case
they cannot be regarded as actions that are done in the course of carrying out
his duties or for the purpose of carrying out his duties. What is stated in s.
7A is intended to create a distinction between legitimate parliamentary
activity and acts of the kind described in the aforesaid provision of statute,
as if it said that it does not permit circumstances in which such purposes or
such acts are a part of the parliamentary activities in which a member of the
Knesset participates. Prima facie the provisions of s. 7A address the stage before the elections, i.e.,
the provisions address an earlier constitutional stage. But it can be assumed
that it will be argued that the restrictions provided in s. 7A (and they are
without doubt restrictions in comparison to full freedom of speech) have, by
their very nature and in view of the logical ramifications of the aforesaid
provision of state, transcendent consequences in that they directly imply what
can be considered, according to our constitutional outlook, as a permitted or a
prohibited act in the parliamentary sphere. Moreover, it can also be argued
that s. 7A addresses a list of candidates rather than an individual member of
Knesset as such; but the answer to this is that from what is required of a list
of candidates we can derive by means of an analogy the implications for the
individual member of the Knesset’ (ibid. [4], at p. 211).
In Pinhasi v. Knesset [5], President Barak also
left undecided the question ‘whether substantive immunity applies to offences
that directly concern actions or purposes that prevent a list of candidates
from participating in the elections to the Knesset’ (ibid. [5], at p. 690). All of this was before Amendment
no. 29. Now the connection is enshrined in statute, in s. 1(a1) of the Immunity
Law, which provides the following:
|
‘Immunity in carrying out duties |
1. … (a1) To remove doubt, an
act, including a statement, which is not incidental, of a member of the
Knesset that contains one of the following shall not be regarded, for the
purpose of this law, as expressing an opinion or as an act that is carried
out in the course of his duties or for the purpose of his duties as a member
of the Knesset: |
|
|
(1) Denying the existence of
the State of Israel as the state of the Jewish people; |
|
|
(2) Denying the democratic
character of the state; |
|
|
(3)
Incitement to racism because of colour or belonging to a race or to a
national-ethnic origin; |
|
|
(4) Support for an armed struggle of a hostile state or for acts
of terrorism against the State of Israel or against Jews or Arabs because
they are Jews or Arabs, in |
|
|
…’ |
This
strengthened the connection between the grounds for disqualification concerning
actually competing in the elections and the grounds for denying substantive
immunity. But this is not the end of the matter, since, as we have already
seen, in so far as s. 7A of the Basic Law: the Knesset is concerned, the
grounds for disqualification do not stand on their own; they are accompanied by
all the interpretive criteria that derive from the necessary balance between
the relevant considerations. Is the Immunity Law free of all or some of those
interpretive criteria? Should we ignore these balancing criteria and the
balancing tests laid down in case law with regard to substantive immunity (and
especially the margin of natural risk test) when we apply the provisions of s.
1(a1) of the Immunity Law? Moreover, are incidents that occurred before Amendment no. 29 — even if we assume that it
is a clarifying amendment — also exempt from the balancing applied by
judicial discretion where an indictment of the kind filed against the
petitioner is filed against a member of Knesset? I am of the opinion that if we
answer yes to all of these questions, an excessive disparity will be created
between the criteria that have been laid down with regard to preventing
participation in the elections and the criteria required for denying
substantive immunity.
7. My colleague Justice E. Hayut cites the remarks
of
‘It would
appear that ss. 5 and 7A, on the one hand, and s. 1 of the Immunity Law, on the
other hand, were intended to prevent this phenomenon. Preventing the
registration of a political party and preventing its participation in elections
is a preliminary stage, which is intended to select the organizations and the
persons that will be allowed to take part in the institution of the
legislature. After
the “selection,” the institution of immunity will protect the freedom of
expression of those who are chosen. The premise in this protection is that the
elected representatives are only those people whose expressions and activity
have been defined as legitimate’ (emphasis supplied).
Thus we
see that after the selection process the institution of substantive immunity
will protect the freedom of expression of those persons who were elected, on
the assumption that if they are elected, this was after their statements were
found not to have crossed the line beyond which the statement should have been
prevented ab initio rather than dealing with
it by means of denouncing it from the podium of the Knesset. This is, of
course, pertinent in our case too, since denying the petitioner immunity is
being sought for the very same statements that were already examined and that
were not found to be sufficient to prevent him from being elected to the
Knesset. In the same vein, see the remarks of
‘This approach of mine,
which applies freedom of expression also to the “exceptional” statement that is
racist, applies especially to freedom of expression of a political party that
participates in parliamentary life. The petitioners were permitted to
participate in the elections. More than twenty thousand persons voted for them.
How is it possible, in a democracy, to allow an organization to participate in
the elections but to prevent it from expressing its opinions after the
elections?’
My
conclusion is therefore that the correlation between the grounds for
disqualification and the grounds for denying immunity, and the continuous
purpose that this correlation seeks to serve, are the two sides of the coin; on
the one hand, if an act or a statement constitute a ground for disqualifying a
list or a candidate from standing for office for the Knesset, pursuant to s.
7A, then this has, in the words of President Shamgar in Miari v. Knesset Speaker [4], ‘transcendent
consequences,’ i.e., a direct ramification ‘on what can be considered,
according to our constitutional outlook, as a permitted or a prohibited act in
the parliamentary sphere,’ and therefore the act or expression will not be
protected by substantive immunity. But on the other hand, if it is found that
there is no sufficient ground for preventing the possibility of being elected
to the Knesset, it will be difficult for us to ignore this conclusion when we
examine the question of immunity for the same statements and on the same
grounds. Allowing someone to compete in the elections implies de facto a
predetermination of the margin of parliamentary activity that is not prohibited
in our democracy. Activity within this margin while holding office in the
Knesset will be considered in most cases as activity of a member of Knesset
that is carried out in the course of carrying out his duties and for the
purpose of carrying out his duties. It is not easy to eject from the back door
someone who was allowed in through the front door. Obviously, if the member of
the Knesset departs from the scope of that margin, and severs the connection
between the declarations and purposes that were approved and his de facto actions,
then the connection between the approval to compete in the elections and the
protection provided by immunity is also severed. In such a case, removing the
immunity will also not deter the colleagues of that member of the Knesset, and
his replacement where necessary, from acting within the framework of that
permitted margin. Indeed, when the whole margin lies on the borders of what is
permitted, any deviation, even if small, is likely to remove the protection of
immunity. But such an additional step was not taken in our case. The statements
in the original case are the very same statements that are the basis for the
indictment today.
8. It
should be emphasized that I am not of the opinion that there is a real
disparity — a ‘considerable’ distance’ in the words of my colleague
Justice Hayut — between refusing the right ab initio to participate in the elections and denying
substantive immunity. My colleague is of the opinion that even though all of
the arrangements — those in s. 5 of the Political Parties Law, s. 7A of
the Basic Law: the Knesset and s. 1(a1) of the Immunity Law — were
intended to realize a common purpose and to protect common basic values, there
is a material difference between the first two and the third. My colleague
discusses the great importance of the right to register a political party and
to compete in the elections, a right that, when denied, irreversibly violates
basic rights of the individual, namely the right to vote and to stand for
election and the freedom of expression. By contrast, according to her, denying
substantive immunity does not involve such a serious violation. As she says:
‘We are concerned with a
candidate who has already been elected to the Knesset and is holding office in
it as one of its members. Within the framework of this position, he has the
possibility of addressing the Knesset, of tabling questions, putting forward
matters for the agenda and draft laws, being a member of the Knesset committees
and voting on laws… not granting substantive immunity is a decision that by its
very nature is limited to the circumstances of a specific case that gives rise
to a question of immunity, and it does not result in a sweeping denial of the
rights of the Knesset member and the ways in which he may act and express
himself that come with his position… the violation to the freedom of expression
because substantive immunity is not given to a member of the Knesset is a
violation after the event for remarks that have already been made’ (at para.
15).
My
colleague goes on to say:
‘With regard to the scale
that we are discussing, it can be said that the restrictions in s. 5 of the
Political Parties Law and in s. 7A of the Basic Law: the Knesset ab initio
prevent the freedom of political expression of the individual, whereas the restrictions
that limit the scope of substantive immunity apply entirely after the event,
i.e., in the stage after the member of the Knesset has realized his freedom of
expression…’ (ibid.)
My
approach is different. I am of the opinion that if we were indeed speaking here
merely of a violation after the event that is limited to the circumstances of a
specific case, there would be no need for the institution of substantive
immunity, which violates, as my colleague Justice Hayut clearly explained, the
rule of law and equality before the law. The whole essence and logic of the
institution of immunity derives from the assumption that indicting a member of
the Knesset in a criminal trial for an act or expression in the course of
carrying out his duties may cause much more extensive harm in the future. Substantive immunity is intended to guarantee that
a member of the Knesset can carry out his duties without fear and express his
opinions and outlooks, which are the opinions and outlooks of the people who
voted for him:
‘Immunity is intended to
ensure that a member of the Knesset can properly discharge his duties and
represent the public that elected him by giving free and full expression to his
opinions and outlooks, without concern or fear that this may result in a criminal
conviction or a personal pecuniary liability in a civil proceeding’ (the
remarks of my colleague Justice Hayut in her opinion, at para. 6).
Similarly:
‘A member of the Knesset
who cannot express himself without fear of the legal consequences of his remarks
cannot discharge his duty to the voter… the freedom of political debate demands
that no restriction is placed on the ability of elected representatives to
express themselves freely’ (per President Shamgar in Miari v. Knesset Speaker [4], at p. 207).
We are
therefore speaking here of a barrier that prevents free speech;
of the fear of the cooling effect,
which often causes as much harm as the ab initio freezing effect and which will undermine the ability of members of the
Knesset to take part in the political debate. Only this understanding, of the
future wide-ranging effects that may result from indicting a member of the
Knesset can explain the ‘constitutional importance of the first degree’ that is
attributed to substantive immunity, and the outlook that ‘the whole nation has
a clear essential interest in the realization of this right, so that it does
not suffer a major or minor violation by anyone’ (per President Agranat in State of Israel v. Ben-Moshe [3], at p. 439). Indeed,
if a member of the Knesset is concerned that he might be indicted if he
expresses the opinions of his party and the people who voted for him, of what
value is the possibility of addressing the Knesset, of tabling questions and
draft laws and taking part in voting?
9. My colleagues cite the case law rule that was
laid down in Pinhasi v. Knesset [5], according to which
‘for the purpose of analyzing a claim of immunity, we adopt the premise that
the facts of the indictment will be duly proved.’ This is indeed the case law
rule, but ultimately, as we have said, we should ensure that the disparity
between the criteria for examining the right to compete in the elections —
a right that can only be denied under strict conditions, including the need for
‘convincing, clear and unambiguous evidence’ — and the criteria for
examining the question of immunity is not greater that what is required by the
nature of the matter. This is the case today, and it is certainly the case with
regard to an incident that occurred prior to Amendment no. 29, which my
colleague Justice Hayut agrees does not apply ‘retrospectively
in a literal manner,’ even if it is a clarifying amendment. In
the absence of appropriate balancing tests, a situation may be created in which
the combination of the rule in Pinhasi v.
Knesset [5] and
Amendment no. 29 will lead to the result that administrative discretion in
filing an indictment for certain offences — such as the offence attributed
to the petitioner — will also determine the question of immunity, without
the matter being subject to any real judicial scrutiny. It is undesirable that
this should happen (cf. Benvenisti, ‘Regulating the Freedom of Expression in a
Polarized Society,’ supra, at p. 65). Amendment no.
29 was not intended to rule out the possibility of exercising judicial
scrutiny, just as the aforesaid s. 7A did not deprive the court of the
possibility of exercising judicial scrutiny that takes into account the basic
principles of the legal system.
10. Indeed,
the legislature had its say when it enacted the provisions included in s. 1(a1)
of the Immunity Law within the framework of Amendment no. 29. But even this
amendment does not raise an impenetrable barrier against judicial scrutiny,
which should be stronger precisely when a question arises with regard to human rights.
A similar need has also been recognized in other legal systems. The United
States
11. My
colleague the president follows this path, and presents in his opinion a
balancing test for the purpose of applying Amendment no. 29. He does this
before he comes to the margin of natural risk criterion, which applies,
according to him, to cases that do not fall within the scope of that amendment.
Thus, the president holds that —
‘The distance between
convincing, clear and unambiguous evidence (which is required for the red line
of which my colleague speaks) and the evidence required in order to deny
substantive immunity (within the framework of a criminal proceeding) is not
great at all’ (at para. 5 of his opinion).
This balancing criterion is sufficient, in our case, to lead to the
conclusion that even when we take Amendment no. 29 into account, there is no
statutory basis for holding that the petitioner does not have substantive
immunity.
Indeed, the distinction outlined by the president between uttering
statements of praise and approval for a terrorist organization and actual
support for an armed struggle against the State of Israel, appeared already in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] and
was supported by a majority of the justices. This distinction allowed the
petitioner to compete in the elections to the Knesset (for a similar distinction,
see HCJ 1398/04 Ben-Horin v. Registrar of
Amutot [27]). We
do not deny that the distinction is not an easy one, and already in Central Elections Committee for the Sixteenth
Knesset v. Tibi [2] there
was doubt in this regard. But in so far as there is a doubt, it is better to
‘err’ on the side of freedom of speech, as
‘If this court is to err in evaluating claims
that freedom of speech, freedom of the press, and freedom of religion have been
invaded, far better that it err in being over protective of these precious
rights.’
Ultimately
it was found in Central Elections Committee
for the Sixteenth Knesset v. Tibi [2] that the evidence could not support the ground
of disqualification that refers specifically and expressly to support for an
armed struggle. The same conclusion, on the basis of the same evidence, has
been reached by my colleague
12. The
question remains whether, in view of the balancing tests laid down in the case
law of this court, the remarks made by the petitioner fall outside the scope of
substantive immunity. In this regard, I see very great importance in the fact
that we are dealing with offences that revolve entirely around statements.
Indeed, the interests that immunity is intended to realize — mainly the
right to effective political representation and to participation in public
debate, the principle concerning the existence of a free marketplace of ideas and
opinions and the purpose of maintaining a democratic process — are
realized first and foremost by means of the political statements of a member of
the Knesset. Free expression of opinions is the heart and soul of substantive
immunity. ‘Someone who is in the business of making speeches has a high
probability of being caught violating prohibitions concerning defamation or
incitement. Substantive immunity was intended to give him immunity within the
limits of this risk’ (per
With
regard to activity of a different kind, such, for example, as a false entry in
corporate documents, it has been held that it does not fall within the natural
risk of the activity of a member of the Knesset, since ‘there is no concern
that if criminal liability is imposed on a member of Knesset who signs these
accounts in the knowledge that his declaration is false, and with a fraudulent
intention, he will refrain from preparing these accounts lawfully’ (ibid. [5], at p. 692). This is not the case with
offences involving speech, such as offences of incitement and even uttering
statements of praise and approval for a terrorist organization. Thus, for
example, a member of Knesset, and not necessarily a member of Knesset who comes
from the Arab minority, may express an opinion that a violent act that was
directed against the State of Israel led to political consequences for which
the perpetrators of the act hoped. Such a statements does not need to be
motivated by identifying with the action or support for it, but it may arise
from the speaker’s subjective perception of reality. No one disputes that the
remarks of the petitioner depart prima facie from the scope of such a statement. But the fear is that if the
petitioner is not permitted to say what he said, notwithstanding the
seriousness of his statement and notwithstanding the fact that it lies on the
borderline of immunity, this will lead to excessive restraint, which will
result in an excessive restriction on the limits of debate. I am therefore of
the opinion that the petitioner’s remarks lie within the margin of natural
risk.
The result
is that I agree with the conclusion of my colleague
Petition granted by majority
opinion (President
3 Shevat 5766.
1 February 2006.