The Knesset. Basic Law: The Knesset -- section-by-section debate

The committee met three times to consider the Basic Law: The Knesset, debating the current law article by article. It met an additional two times to debate related issues to be added to the legislature section of the constitution: Ratification of International Treaties, appointments, investigative commissions, and submission of information. The discussions on all additional topics are at the bottom of this page, following the article-by-article discussion of the existing Basic Law.

1. The Knesset is the parliament of the state.

Several members of the committee, its legal staff, and invited guests pointed out that the Basic Law: What the Knesset is, contains an incomplete definition of the Knesset’s roles, defining it simply as the state parliament.

The Knesset as a legislative authority: It was agreed that article 1 should include the Knesset’s role as the legislative authority. The suggested version of the article is: “The Knesset is the legislative authority and the parliament of the state.”

The Knesset as overseer of the executive authority: The Committee debated whether the Knesset’s role as an overseer of the executive branch should be included in article 1. Former Finance Minister Yaakov Ne’eman recommended that this and other functions of the Knesset be defined in ordinary law rather than in this Article. The Committee also debated where the constitution should mention that the people are sovereign.

The Knesset as the constitutional authority: Discussion of the Knesset’s role as the grantor of the authority to draft a constitution was deferred to a later debate on the suggested draft of Basic Law: Legislation.

2: The Knesset sits in Jerusalem.

The committee discussed whether the current article should remain in place, or should be removed to a new chapter in the constitution that will specify that all governmental authorities sit in Jerusalem. Ultimately the Committee tended to prefer the latter arrangement.

3: The Knesset shall, upon its election, consist of one hundred and twenty members.

The legal advisor to the committee recommended retaining this article, citing similar phrases in many constitutions worldwide. Several members of the committee mentioned the possibility of changing the number itself; the substantive debate was postponed to later, but the committee agreed to keep this article in the constitution.

4. The Knesset shall be elected by general, national, direct, equal, secret, and proportional elections, in accordance with the Knesset Elections Law; this section shall not be altered save by a majority of the members of the Knesset.

The entrenchment of article 4: Article 4 includes a formal entrenched provision, i.e., a provision that requires a certain majority of MKs to change the article. Historically, this permanence /entrenchment condition was once the sole basis of judicial review of legislation, based on the formal condition of an absolute majority for any change in the electoral system; today the Supreme Court considers all Basic Laws to be, by definition, sources of judicial review, and requires a new Basic Law to amend any existing Basic Law (read more on the "Constitutional Revolution").

The legal advisor suggested eliminating the latter half of this article, to be replaced by a general entrenchment clause detailing the procedure for changing the constitution that will refer to the constitution as a whole.

Authorization to change election procedures: The Committee stressed the importance of allowing certain changes to election procedures to be made at the level of ordinary legislation. Thus, for instance, the minimal percentage of votes needed to gain a seat in the Knesset could be changed without amending the constitutional principle of proportionality (above).

5. Every Israel national of or over the age of eighteen years shall have the right to vote in elections to the Knesset unless a court has deprived him of that right by virtue of any law; the Elections Law shall determine the time at which a person shall be considered to be eighteen years of age for the purpose of the exercise of the right to vote in elections to the Knesset.
5A. The list of candidates for the Knesset shall be submitted only by a party; the means of association and registering of the parties and the conditions for submitting a list of candidates shall be determined by law.

The right to vote of new immigrants and Israelis abroad: The committee debated limiting the voting rights of new immigrants and Israelis abroad. MK Reshef Chayne (Shinui) suggested adding a minimum period of residence in Israel as a condition for voting rights. Other Committee members took the opposite stance and stated their preference for expanding the voting rights of Israelis abroad. It was agreed that article 5 will remain unchanged. There will be further discussion on the suggestion to include a specific authorization to limit the right to vote in an ordinary law.

Article 5A – parties and candidates: It was agreed that this article will remain in the constitution.

MK Azmi Bishara (Balad) expressed his desire that the article include the basic principles of creating a party, that are presently in an ordinary law (Party Law). MK Avraham Ravitz suggested not to restrict the right to present a list of candidates to a party only, but to allow everybody to do so.

6. (a) Every Israel national who on the day of the submission of a candidates list containing his name is twenty-one years of age or over shall have the right to be elected to the Knesset, unless a court has deprived him of that right by virtue of the law or he has been sentenced, by a final verdict, to actual imprisonment for a term of over three months and on the day of submission of the list of candidates seven years have not passed since the day he concluded serving his term of imprisonment, unless the chairman of the Central Elections Committee has determined that the crime of which he has been convicted, in accordance with the circumstances, does not bear moral turpitude.
(b) [Annulled]
(c) A candidate for the Knesset who has been sentenced as stated in Section (a) and whose sentence was finalized after the submission of the list of candidates and before he has begun to serve as a Knesset member, shall be treated as one who has withdrawn from the list of candidates that included his name, or from his membership in the Knesset, whichever the case, unless the chairman of the Central Elections Committee has determined that the crime of which he has been convicted, in accordance with the circumstances, does not bear moral turpitude.
(d) The determination of the chairman of the Central Elections Committee, in accordance with Sections (a) and (c) will not be required if the court has ruled by law that the offense, in accordance with the circumstances, does bear moral turpitude.
(e) For the purpose of this section, "actual imprisonment" is the sum of all terms of actual detention which the convicted person must serve in a single continuous period, even if other sentences have been imposed, including suspended sentences that have been activated; "offense" is each offense for which a period of actual imprisonment has been imposed.

The right to be elected:
The limitation of the right to be elected due to criminal past:
The Committee discussed the wisdom of specifying, at the constitutional level, the exact conditions depriving the right to be elected depending on the length of incarceration. The trouble is the definition of moral turpitude, which has changed over time and differs from field to field.

Should the restriction due to criminality be specified in the constitution?
Committee members disagreed on whether the constitution should leave more flexibility to the legislation, and include only an authorization to limit the right to be elected on the basis of criminal past, or whether it should maintain a high level of specificity on the type of criminal past that should bar a candidate from the Knesset.

Two alternative versions of this article will be prepared for the committee to choose from, one similar to the present version, and another with authorization phrase leaving the definitions to ordinary legislation.

6A. (a) A member of Knesset who leaves his faction and does not resign from office at the time of his leaving, shall not be included, in the election of the next Knesset, in the list of candidates submitted by a party that was represented by a faction of the outgoing Knesset; this regulation shall not apply to a faction split under circumstances determined by the Knesset Election Law.
(b) For the purposes of this section:
"resignation from a faction" - including a vote in the Knesset plenum not in accordance with the position of the faction concerning the expression of confidence or no confidence in the government; voting shall not be construed as resignation if the Knesset member has not received compensation in exchange for his vote;
"compensation" - directly or indirectly, by a promise or future commitment, including the assurance of a place on the list of Knesset candidates, or the appointment of the Knesset member himself or someone else to whatever position.

Restriction of candidacy for MK who leaves his faction: This Article was added to the basic law in the wake of a public scandal in which members of Knesset resigned from their factions and joined the Labor party in return for political favors. This change threatened the power-sharing agreement in place between the Labor and Likud. The attempt to undermine the Likud ultimately failed, and this article was added to ensure no such thing could happen again. The committee considered whether this article was still necessary.

The following shall not be candidates for the Knesset:
(1) the president of the state;
(2) the two chief rabbis;
(3) a judge;
(4) a religious court judge;
(5) the state comptroller;
(6) the chief of the General Staff of the Israel Defense Forces;
(7) rabbis and ministers of other religions while holding paid office;
(8) senior civil servants and senior IDF officers of such ranks and positions as shall be determined by law;
(9) policemen and prison warders of such ranks and positions as shall be determined by law;
(10) employees of corporations established by law of such ranks and positions as shall be determined by law; unless they have ceased to serve in that position or job, as stated, before the deadline for submitting lists of candidates for the Knesset, and unless an earlier date has been set by law.

The central question – should the constitution list all those barred from seeking a Knesset seat?

Option 1: Constitutional authorization to establish limitations in ordinary law:
MK Ronnie Bar-On (Likud) and MK Michael Eitan suggested avoiding so detailed a listing in the constitution, finding instead a single sentence that would ban such persons as judges and state rabbis, but not members of such authorities as the Israel Postal Authority or The Israel Nature and Parks Authority. One suggestion regarding articles 6, 6A, and 7 was that the constitution include the right to vote and run for office, the principle of separation of powers, and that the Knesset be authorized to establish the remaining limitations and details in ordinary legislation.

Option 2 - The constitution should include detailed limitations on the right to vote or to be elected
Several MKs, including MK Azmi Bishara , considered the right to vote and to be elected to the Knesset to be so important that the details of those prohibited from running must be included in the constitution. The article expresses the principle of separation of powers and the principle that public servants and especially military persons should be apolitical. The advantage of determining the detailed limitations on the right to be elected in the constitution is that it increases legal certainty and ensures that the legislator rather than the court determines who are those who cannot be candidates.

It was agreed that two versions be prepared accordingly.

Finally, the legal advisor recommended an amendment to clarify that the limitations of the article apply only to those Rabbis and other public servants who are in the employ of the State.

7A. A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following: 1.Negation of the existence of the State of Israel as a Jewish and democratic state; 2.Incitement to racism; 3.support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

(B) The decision of the central elections committee that a candidate is barred from participating in elections requires the approval of the Supreme Court
(C) A candidate shall make a declaration concerning this article
(D) Details concerning the debate in the Central Elections Committee and the Supreme Court and regarding the declaration required by subsection (C) shall be established in the Law.
(Subsections B,C, and D were passed by amendment 35 in 2002, and their translation here is unofficial)

Prevention of participation of candidates list:
Article 7A expresses the concept of a “self-defending democracy”
Article 7A is based on the belief that a democratic state is entitled to defend itself against undemocratic elements that wish to use the democratic mechanism to undermine the state’s foundations. A “self-defending democracy” seeks to protect itself from those candidates or parties whose words or deeds threaten the essence of democracy. Article 7A allows Israel to ban a list or candidate who supports armed struggle against the state of Israel, who negates the Jewish or Democratic character of the state, or incites to racism, is based on this concept.

The power of the Central Election Committee to prevent a party or individual from participating in the elections on grounds of support of armed struggle was added to article 7A in May 2002.

The Supreme Court’s decision to allow Tibi and Bishara to run for Knesset
In January 2003, the Israeli Supreme Court, in a special panel of 11 Justices, overturned the Central Elections Commitee's decision to disqualify Arab MKs Ahmad Tibi and Azmi Bishara, and Bishara's Balad Party from running in the elections (Central Elections Commitee of the 16th Knesset versus MKs Tibi, Bishara and others, case HC 11280/02). Based on article 7A(a) to Basic Law: The Knesset, the Central Elections Committee disqualified Tibi and Bishara from participating in the elections because they rejected Israel's character as a Jewish state, and supported armed attacks by terrorist groups. This decision, as stated in article 7A(b), required the Supreme Court’s confirmation; but the Supreme Court overturned the decision.

The majority of the Court ruled that although Bishara’s ideology of Israel as a "State of all its citizens" comes close to negating the Jewishness of the State of Israel, the Court saw no convincing, conclusive, and unequivocal evidence that Bishara had crossed the line. The same conclusion was reached regarding allegations of support for armed struggle by a terrorist organization. The court insisted such support must be direct and tangible, and not simply moral (see background material on the subject). The Court also expressed concern that the Central Elections Committee, itself subject to political pressure, decides who may or may not run for office.

Strengthening the decision of the Central Election Committee
In response to the Supreme Court’s decision on Bishara and Tibi and in an effort to make it more difficult for the court to overrule the Central Elections Committee, MK Gideon Sa’ar suggested inserting a clause requiring a special majority of justices for such a decision. Others, however, felt the danger of the court overriding the Election Committee decisions would be infrequent and therefore should not be reflected in the constitution.

Should article 7A include the element of a Jewish state? MK Azmi Bishara voiced his opinion that the current article 7A had no place in the constitution of a democracy. In his view, Israel should defend only its democratic nature and exclude only parties that threaten democracy and not those which threaten its Jewish character. He claimed the right to use the democratic system to try and persuade the Jewish majority in Israel not to consider Israel a Jewish state. He asked the Committee how Israel could consider disqualifying him and his party, when it had previously allowed anti-democratic communist parties to run for Knesset, whose sole purpose in participating in democracy was to overthrow it. MK Bishara suggested that the Jewish nature of Israel could be a constitutional principle without having the effect of limiting the right to be elected of those who disagree with it.

Other MKs supported the present version of article 7A, saying that the Jewish nature of Israel is as fundamental a principle as its democratic nature. It was agreed that the present version of article 7A will remain and that MKs will suggest their changes to the text.

Term of office of the Knesset 8. The term of office of the Knesset shall be four years from the day on which it is elected.

Date of elections (Amendment No. 1) 9. The elections to the Knesset shall take place on the third Tuesday of the month of Cheshvan in the year in which the tenure of the outgoing Knesset ends, but if the year which preceded that year was a leap year, the elections shall take place on the first Tuesday of that month.

Term of office of the Knesset after dissolution 36. Once the Knesset decides to dissolve itself, the term of office of the next Knesset shall run until the next month of Cheshvan following the termination of four years from the day of its election.

Term of office and date of the elections: The Committee decided to combine articles 8, 9, and 36.

9A. (a) The Knesset shall not extend its term except by passing a law by a majority of 80 members and unless special circumstances exist that prevent the holding of elections at their proper time; the extension shall not exceed the time required by the above-mentioned circumstances; the election date shall be set by law.
(b) Without impinging Section 34, the Knesset is entitled, by a majority decision of its members, to advance the date of elections as determined in accordance with Sub-section (a) above, on condition that the new date is not earlier than the date set for Knesset elections in accordance with Section 9.

Extending the Knesset’s term

The Committee’s legal advisor recommended maintaining the special majority specified in this article, regardless of what safeguards are applied to the constitution as a whole.

10. Election Day shall be a public holiday, but transportation services and other public services shall function normally.

The Committee decided to retain this law, but move it from the constitution to the ordinary Knesset Law.

11. The results of the elections shall be published in the government gazette Reshumot within eight days of Election Day.

Publication of election results

The Committee entertained several suggestions for establishing the formal procedures governing the official final report of the Central Elections Committee following Knesset elections. It was suggested that the Elections Committee Chair submit the results to the President of the State, with their publication in the Reshumot.

Convening of the Knesset (Amendment Number 27)

13. The Knesset shall be opened by the president of the state or, in his absence, by the most veteran Knesset member present; if the president of the state opens the Knesset, he shall hand over the chairmanship of the meeting to the most veteran Knesset member present; under this basic law the "most veteran" is the one whose membership in the Knesset is the longest, whether continuously or cumulatively, and among those of equal seniority, the oldest.

The opening session (Amendment Number 23)

14. Arrangements for the opening session shall be determined by law and shall express the character of the State of Israel and its heritage.

Of articles 12-14, it was agreed that the constitution must detail when the election results take effect and the new Knesset first meets. MK Eitan concluded that articles article 12, 13, and 14 be condensed into the following sentence: “The Knesset shall convene for its first meeting within X days from Election Day. The arrangements for the opening session shall be established in the Law.”

15. Declaration of allegiance by members of the Knesset(Amendment Number. 23)
15. (a) A Knesset member shall make a declaration of allegiance as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to discharge my mandate in the Knesset."
(b) Arrangements for the declarations shall be set by law.

Adding “the constitution” to the pledge The phrase “and to the constitution” will be added to the pledge of allegiance. Prof. Zeev Segal of Tel Aviv University suggested the pledge includes not only the state of Israel and its constitution but also its laws. Others thought a pledge to the constitution inherently includes the laws of the state.

16. If the speaker of the Knesset has called upon its members to make their declarations of allegiance and a member has not done so, that member shall not enjoy the rights of membership as long as he has not made the declaration.

Status of an MK who does not pledge allegiance
The Committee addressed the question: how does the Knesset regard an elected member who refuses to pledge allegiance, and what part of that shall be detailed in the constitution as opposed to regular Knesset Law? It was decided to remove the MK from office if he or she has not pledged allegiance within a certain period of time, and replace him or her with the next candidate on that party’s list, though some Committee members preferred more immediate action. The Committee also discussed what rights the MK retains in the interim period. MK Eitan stressed the need to retain any principle involving the disqualification of an MK in the constitution, though its details remain in regular legislation.

16A. If a Knesset member holds an additional, non-Israeli citizenship, and the laws of the country whose citizenship he holds permit him to be released from such citizenship, he shall not declare allegiance until after he has done everything required on his part to be released from such citizenship, and he shall not enjoy the rights of a Knesset member until he makes his declaration.

Dual citizenship
Prof. Asher Maoz of Tel Aviv University explained that while some countries prohibit holding citizenship of another country, Israel wishes to encourage immigration (“Aliyah”) and therefore is more lenient in its demands regarding dual citizenship.

Should an MK renounce non-Israeli citizenship?
The Committee debated the wisdom of this stipulation; MK Avraham Burg opposed the measure altogether, saying that just as ordinary Israeli citizens are allowed to hold additional citizenships, so too should members of Knesset. Others thought that the loyalty of an MK should be only to the state of Israel, and therefore an MK must endeavour to be released from all additional citizenships.

When should an MK renounce citizenship?'
The Committee debated when to require the candidate to renounce his or her other citizenship. MK Ronnie Bar-On favored a tentative renunciation, to take effect if and when elected; MK Azmi Bishara on the other hand, preferred a requirement to renounce the other citizenship before declaring candidacy. MK Yuli Tamir (Labour) recommended moving this article to ordinary legislation, but others, like Prof. Ariel Bendor of Haifa University, thought that this restriction on holding office can only be determined in a constitution. The final decision was to retain the article.

Adding a residency requirement
The Committee also decided to add a residency requirement for all MKs and candidates for the parliament, similar to that in Basic Law: The Government, regarding ministers.

17. The members of the Knesset shall have immunity; particulars shall be prescribed by Law.

Immunity of Knesset members
The Committee decided to expand this article to specify substantive immunity, with remaining particulars to be prescribed by law. The definition of substantive immunity and the precise wording of this article shall be proposed and debated in a later meeting.

18. The buildings of the Knesset shall have immunity; particulars shall be prescribed by Law.

Immunity of Knesset buildings
Some Committee members preferred to reduce articles 15-18 and 40-43 to a simple declaration of the rights to be elected and the limitations on election to the Knesset. The legal advisor preferred to keep certain detail in the constitution – the substantive debate can be found in articles 40-43 below.

19. The Knesset shall determine its procedures; in so far as such procedures have not been prescribed by law, the Knesset shall prescribe it by rules; so long as the procedure has not been prescribed as aforesaid, the Knesset shall follow its accepted custom and practice.

Procedures and rules
The Committee discussed whether the constitution should mention the Knesset guidelines and takanon (rules of procedure prescribed by the Knesset itself). Currently, the legal status and importance of the Knesset rules of procedure is unclear because they are passed by the Knesset but not in the form of laws. The Committee accepted Prof. Ariel Bendor’s proposal for a version of the article that will read: “to the extent that the Knesset’s rules of procedures are not determined in the constitution, the Knesset shall prescribe them in law or in rules of procedure according to law.”

20. (a) The Knesset shall elect from among its members a speaker and deputy-speaker; until the speaker is elected, the most veteran Knesset member who is not the prime minister, the prime minister-elect, a minister or deputy minister, shall serve as acting speaker.
(b) The Knesset shall be entitled by its rules to determine restrictions on the election of a Knesset member to serve as speaker of the House or deputy speaker.
(c) The Knesset shall be entitled, by a majority vote of its members, to suspend the speaker or a deputy speaker or to determine restrictions on their office; particulars to be set by law.
(d) The Knesset shall be entitled, by a majority vote of its members or by a larger majority to be determined by law, to dismiss the speaker or a deputy speaker; particulars to be set by law.

Article 20(a) – the Knesset Speaker

The Committee agreed, on the recommendation of its legal advisor, to relegate most of the detail of this article to regular legislation. The Constitution will include only the principle of a Knesset Speaker, and authorize the law to detail the rest.

Article 20(b), 20(c), 20(d) – restrictions, suspension and dismissal of the Knesset Speaker

Removal from office for political reasons:

Members of the Committee considered the danger of Knesset rules being used to prevent a Speaker from holding office for political reasons. According to current Knesset Law, the Knesset Speaker can be suspended by a majority vote of the MKs, if criminal proceedings are initiated against him or her and he or she has been found guilty of a crime that has turpitude. The Speaker can be removed from office if the Ethics Committee declares him or her to have acted inappropriately, and 90 members of Knesset vote to remove him or her.

Immunity for the Speaker

One suggestion was to grant the Speaker immunity, except in aforementioned cases, and to retain a speaker even through a change in the cabinet. Some Committee members preferred to protect the Speaker from the majority; others considered the danger of an unimpeachable Speaker who acts unfairly against the majority.

Easing the conditions for removal:

Chairman MK Eitan proposed that the Knesset retain the right to remove the Speaker for any reason by a vote of 80 MKs, rather than 90; and for ethical reasons as detailed above by a majority of 61 MKs. It was agreed that the special majority for impeaching a Speaker must be specified in the constitution (lest a regular majority bypass the restriction by simply changing the law).

The Committee also decided to mention in the constitution that reasons for preventing the election of a speaker according to article 20(b) be established in the law, and that the majority be reduced to a regular majority.

2OA.(a) Whenever the speaker of the Knesset leaves the territory of the state, a deputy speaker shall serve as acting speaker until his return.
(b) Whenever the speaker of the Knesset notifies the House Committee, or if the House Committee determines, that for reasons of health the speaker of the Knesset is temporarily unable to perform his duties, or the speaker announces that he is temporarily unable to perform his duties and the House Committee acknowledges his announcement, a deputy speaker shall serve as acting speaker until the speaker notifies the House Committee or until the House Committee determines that the speaker is no longer unable to perform his duties.
(c) When the post of speaker of the Knesset has fallen vacant - because the speaker has resigned or has died or because the House Committee has determined that for reasons of health he is permanently unable to perform his duties - a deputy-speaker shall serve as acting speaker until the Knesset elects a new speaker.
(c1) (1) If the speaker of the Knesset is suspended from his post by a decision in accordance with Article 20(c), a deputy speaker shall serve as acting speaker until the suspension is lifted or until the election of a new speaker, which ever the case may be.
(2) If the speaker of the Knesset is removed from his post by a decision in accordance with Article 20(d), a deputy speaker shall serve as acting speaker until the election of a new speaker.
(d) The deputy speaker who is to serve as substitute speaker or acting Knesset speaker shall be elected in that behalf by the House Committee.
(e) During his tenure as substitute speaker or acting speaker of the Knesset, the deputy speaker shall serve in every capacity assigned to the speaker of the Knesset by law, shall perform every duty given the speaker of the Knesset by law, and shall exercise every power vested in the speaker of the Knesset by law.
(f) The provisions of this article shall also apply, mutatis mutandis, if the circumstances envisaged in Subarticles (a), (b), (c), or (c1) with regard to the speaker of the Knesset exist with regard to a deputy speaker who is serving as substitute speaker or acting speaker.

Acting Speaker
This article in its entirety will be relegated to ordinary law.

21. (a) The Knesset shall elect permanent committees from among its members and it may also elect committees from among its members for specific matters; the functions, powers, and procedures of the committees shall, in so far as they are not prescribed by law, be prescribed by the rules.
(b) The rules may determine regulations concerning the authority of the committees to summon an office holder or functionary of the Civil Service, a local authority, a religious council, a corporation established by law or a government corporation, and to require him to provide information on the activities of the body which he serves, unless such disclosure entails some violation of the law, of a professional commitment, or of an obligation of trust to which he is bound by law, and he shall be assured the rights of a witness before the court; the summons shall be issued via the minister concerned or with his knowledge, and for someone who is not in the Civil Service this shall be done by the head of the body in which the invitee serves; and the minister or the head of the body in which the invitee serves may inform the committee that he himself will appear in place of the invitee.
(c) [Annulled]

Knesset committees
Committee Chair MK Eitan said this article would be reduced to something along the lines of, “The Knesset shall elect permanent committees from among its members, the details shall be defined in the Law.” The relation between Knesset and the Government There followed a discussion on the relation between the Government and the Knesset, in particular the Knesset’s supervision of the Government.

Article 21(b) – the Knesset’s authority to request information
Committee members complained about the Government failing to send high-level representatives at the request of committees, and of refusing to answer MKs’ questions, raising the more basic issue of and the extent of the powers of the Knesset to demand and receive information and conduct inquiries.

21A. (a) Regulations that are set by a minister and that determine criminal punishment if they are violated shall not take effect unless they are approved, before being issued, by the Knesset committee responsible for the subject matter; if the committee has not decided to approve or reject the regulations within 45 days from receiving them, the regulations shall be considered as approved.
(b) This article does not encroach upon the regulations of a Basic Law or other law.

Knesset control over secondary legislation
Ms. Tami Bornstein of the Ministry of Justice explained that article 21A is based on the principle that criminal punishment may only be established by law or by secondary legislation approved by the Knesset.

Methods of approval of secondary legislation
Ms. Bornstein explained the two possible methods of approval of secondary legislation by the Knesset. One requires “positive approval” wherein a Knesset committee must approve each criminal regulation involving punishment for it to be valid. This may significantly delay the operation of the executive branch. The other method allows for “implied approval” or default automatic approval of the regulation unless the Knesset decides otherwise. The latter method may lack real supervision over the severity of punishments.

The current situation – a contradiction between the Penal law and Basic Law: The Knesset
The current legal situation is that the Penal Law is at odds with the Basic Law: The Knesset on supervision of secondary legislation; the former requires “ positive approval” but the latter allows “implied approval.” The recommendations of the Ministry of Justice recommends that laws whose punishments involve incarceration will require positive approval, whereas those whose punishments are only fines will require only general approval.

This subject will be discussed in detail in the legislation section of the constitution.

22. The Knesset may appoint commissions of inquiry - either by empowering one of the permanent committees in that behalf or by electing a commission from among its members - to investigate matters designated by the Knesset; the powers and functions of a commission of inquiry shall be prescribed by the Knesset; every commission of inquiry shall also include representatives of factions which do not participate in the government, in accordance with the relative strength of the Knesset factions.

Commissions of inquiry
The suggestion was raised to extend the principle of representation of minority factions stated in this provision to all Knesset bodies – Knesset committees, the Knesset Speaker, etc. – it currently extends only to Knesset commissions of inquiry, which have little power. The Committee decided that any such provision should retain the above language, to include representatives of factions in accordance with their relative strength. This is in order to safeguard the participation of small parties and those in the opposition.

23. A cabinet member who is not a member of the Knesset shall, as to everything relating to the Knesset, have the same status as a cabinet member who is a member of the Knesset, except that he shall not have the right to vote.

This article will be relegated to ordinary legislation.

(Amendment No. 6) 24. The Knesset shall hold debates and pass decisions whatever the number of members present, save as otherwise provided by law.

Quorum
The committee examined a brief by the Knesset Research and Information Center on quorums in parliaments throughout the world (read the brief). No decision was reached on the subject; recommendations for amending the article will, however, be accepted.

25. The Knesset shall pass its decisions by a majority of those participating in the voting - those abstaining not being reckoned as participating - and the voting procedure shall be prescribed by the rules, unless otherwise provided by law.

Majority
Slight modifications were suggested on the extent to which abstaining votes would be counted.

26. The meetings of the Knesset shall be held at its place of sitting; however, in special circumstances the speaker of the Knesset may, in consultation with the deputy speakers, convene the Knesset elsewhere. The meetings of the Knesset shall take place on workdays.

MK Avraham Ravitz asked that the instruction regarding meetings on workdays shall be included in the constitution. It was decided that this article will be relegated to ordinary legislation.

(Amendment Number 17) 27. The Knesset shall meet publicly.

Openness of meetings
This article shall be amended to require the Knesset plenum to meet publicly, but to allow committees to meet behind closed doors at their discretion.

(Amendment Number 17) 28. The publication of proceedings taken and utterances made at a Knesset session is not restricted and does not entail any criminal or civil liability.

Publication

This article will be relegated to ordinary legislation.

(Amendments Numbers 5 and 29) 31. Regulations concerning the periods of Knesset sessions and the convening of the House out of session shall be set by law.

Sessions
This article will be relegated to ordinary legislation.

(Amendment No. 15) 34. The Knesset shall not decide to dissolve itself before the expiration of its term of office, unless by passing a law for that purpose by a majority of members.

This article will remain unchanged.

35. The law concerning the dissolution of the Knesset shall contain a provision that the date of the elections to the next Knesset shall not be later than five months from the day the law is passed.

Committee chair MK Eitan requested several suggestions for limits on preparation time for new elections, to limit the period of transitional government when there can be no vote of no-confidence.

36. Once the Knesset decides to dissolve itself, the term of office of the next Knesset shall run until the next month of Cheshvan following the termination of four years from the day of its election.

• • See discussion on sections 8, 9

36A. (a) If the state budget bill has not been passed within three months of the beginning of the fiscal year, the day following the conclusion of the above period (to be known as the determining day) shall be considered as if the Knesset had decided to dissolve itself before the end of its term, and early elections shall be held on the last Tuesday before the end of 90 days from the determining day, unless the Knesset has decided by a majority of its members, within five days of the determining day, due to the proximity of the election date to a festival, holiday, or memorial day, to hold elections at a later date, but no later than 100 days from the determining day.
(b) Notwithstanding the regulations of Sub-section (a), if the state president has initiated measures to form a new government in accordance with Section 30 of the Basic Law: The Government, or elections to the Knesset have been held after the deadline for submitting the budget bill in accordance with Section 3 of the Basic Law: The State Economy, and before the end of three months from the beginning of the fiscal year, the determining day shall be as in Sub-section (a), three months from the beginning of the fiscal year or 45 days from the day the government is established, whichever is later.

[deferred until a later meeting]

Continuity of the Knesset
37. The outgoing Knesset shall continue to hold office until the convening of the incoming Knesset.

Extension of validity of enactments
38. Any enactment due to expire during the last two months of the term of office of the outgoing Knesset or within four months after the Knesset has decided to dissolve itself or during the first three months of the term of office of the incoming Knesset shall continue in force until the expiration of the said three months.

These articles remained unchanged

39. A Knesset member shall receive a salary as provided by law.

This article will be relegated to ordinary legislation.

Resignation of Knesset member
40. A member of the Knesset may resign his office; resignation shall be by personal presentation of a letter of resignation by the resigning member to the speaker of the Knesset or, if the member is unable to present the letter personally, by delivery thereof in the manner prescribed by the rules; the letter of resignation shall be signed on the day of the presentation or delivery.

Consequences of resignation
41. If a member of the Knesset tenders his resignation, his Knesset membership shall expire forty-eight hours after the letter of resignation reaches the speaker of the Knesset, unless the member withdraws the resignation before then.

The right to resign is self-evident
The Committee agreed to MK Eitan’s objection to the need to detail in the constitution an MK’s right to resign, which seems like the basic right of any person. It was agreed that the present article 40 be deleted, and the specific procedures of a MK’s resignation and the time at which it takes effect (currently stated in sections 40 and 41) will be relegated to ordinary legislation.

42. If a member of the Knesset or an elected candidate for Knesset membership has been appointed to a position whose holder is barred from being a candidate for the Knesset, his membership in the Knesset or candidacy for the Knesset, whichever applies, ceases upon his election or his appointment to one of the above positions; for this purpose, "a candidate for the Knesset" is one whose name is included in the list of candidates for the Knesset, from the day the list is submitted until the day of the beginning of his tenure as a member of the Knesset.

Specification of all cases that restrict the right to be elected

The legal advisor suggested that the constitution must detail all the cases in which the service of an MK ends, be it because of a criminal conviction, a suspension or any other reason including refusal to pledge allegiance or to renounce another country’s citizenship. As Prof. Ariel Bendor of the University of Haifa pointed out, all these cases involve a restriction of the right to be elected and therefore should be limited and specified in the constitution.

The consequences of removal of an MK

Legal advisor Sigal Kogut thought that the constitution should specify the consequences of the removal of an MK from office, including the appointment of a replacement MK from the same party. The legal advisor will prepare a draft to include all of the possible reasons for suspension or revocation of an MK’s position in two articles, and a third article detailing the consequences.

Knesset Member who has been convicted (Amendments Numbers 7, 18, 26, 32)
42A.(a) If a Knesset member has been convicted of a felony by a final verdict, and the court by its own initiative or at the request of the attorney-general has determined that the offense bears moral turpitude, his membership in the Knesset shall end on the day the court issued its final verdict, no matter if the offense was committed when he was a member of that same Knesset, a member of a previous Knesset, or before he was a member of Knesset.
(b) Sub-section (a) shall apply also to a Knesset member whose verdict was made final after he began to serve as a member of Knesset; the request of the attorney-general in accordance with Sub-section (a) may be submitted as long as the verdict has not been made final; the request shall be submitted to the court that issued the verdict, and if an appeal has been filed, to the court of appeal.

Suspension (Amendments Numbers 7 and 26)

42B. (a) If a Knesset member has been convicted of a felony, the House Committee may, upon the proposal of any Knesset member, suspend him from office as a Knesset member for the period during which the verdict is not final.
(b) If a Knesset member has been convicted of a felony and sentenced to imprisonment, the House Committee may, upon the proposal of any Knesset member, suspend him from office as a Knesset member for the period during which he is serving his sentence.
(b1) The regulations of this section shall also apply to a Knesset member who has been convicted of an offense as stated in Sub-section (a) or (b) before becoming a Knesset member.
(c) The House Committee shall not pass a resolution under this section before the Knesset member has been given an opportunity to be heard.

Replacement of Knesset member (Amendment Number 7)

43. (a) If a Knesset member's position falls vacant, he shall be replaced from the list of candidates that included his name by the candidate whose name appears immediately after the last of the elected candidates.
(b) If a person's membership in the Knesset has been suspended under section 42B, his position shall become vacant for the period of the suspension and his place shall be taken by the candidate referred to in Sub-section (a). If he resumes his position, the last person on the list of candidates who became a Knesset member shall cease to hold office, but his right to become a Knesset member thereafter, under Sub-section (a), shall not be impinged.

Criminal conviction of an MK

Who defines the term “turpitude”?

MK Eitan addressed the issue of moral turpitude, asking whether the interpretation of the term should be left, as it is now, to the courts, or whether there should be an attempt to define the term in the constitution. Prof. Zeev Segal supported the attempt, and suggested including in the constitution a reference to an ordinary law that determines the exact offences that bear turpitude.

Turpitude or imprisonment as a basis for removal

The Committee also debated whether the stipulation of jail time itself is a sufficient objective measure of the severity of an offence even without the declaration of moral turpitude. Alternatively the constitution can adopt a combined approach – whereby the Knesset has discretion only if the term of imprisonment is shorter than a defined threshold.

MK Reshef Chayne preferred the criterion of term of imprisonment which indicates the severity of the offence better than the vague concept of turpitude. The Committee members rejected this suggestion and supported the test of turpitude, saying that the term of imprisonment in itself does not always demonstrate the actual moral defect of the act.

Should removal from office be automatic or require Knesset approval?

The Basic Law currently stipulates that once the Court declares the crime of an MK to be one of moral turpitude, the membership of the MK ends automatically. The legal situation is different concerning a Prime Minister - after a PM is convicted, the House Committee has to decide upon his or her termination of service.

Several Committee members expressed concern at the fact that the court can automatically remove an MK who has been convicted by declaring the crime to be one of moral turpitude. They suggested adding an approval stage to the process in order to give the Knesset some say in the removal of one of its members from office. MK Eti Livni (Shinui) suggested that rather than requiring a “positive” approval of the Knesset, the default be removal from office, unless the Knesset decides otherwise.

What Knesset body decides on the removal of an MK?

Many Committee members supported giving a Knesset body input on such a decision. This body might be the House Committee, the Knesset plenum or a three-person team composed of the Chairmen of the House Committee and the Constitution, Law, and Justice Committee, and the Knesset Speaker. It was decided that the Knesset plenum is the most suitable body to decide on the removal of an MK.

Concern over politicization of the removal process

MK Eitan and MK Burg raised the additional concern of over-politicization of the decision, wherein a coalition might conspire to keep an MK who should rightfully be ejected from the parliament simply because his presence benefits the coalition. It was agreed in any event that these stipulations would have to be made here at a constitutional level.

What is the majority required?

The Committee debated what majority would be required to remove an MK, and decided that a majority of 61 members of Knesset is sufficient for such a decision.

Conviction of candidates for Knesset

The Committee further considered whether the standards for disqualification of a candidate should be identical to those for the removal of a sitting MK from office. The legal advisor explained that while conviction of a crime with moral turpitude is sufficient to remove an MK from office, it is not automatically sufficient to disqualify a non-incumbent candidate, particularly since moral turpitude is defined in relation to one’s occupation, and previous crimes may be unrelated to political activity.

The conclusion – two drafts

The Committee concluded that the criterion for removal from office will remain moral turpitude. Two versions will be drafted, one that allows the Knesset plenum by 61 votes to retain an MK despite his or her conviction of an offence bearing turpitude. The other draft would maintain the existing arrangement, where the court has the final say.

Stability of the law
44. Notwithstanding the provision of any other law, this law cannot be altered, suspended, or made subject to conditions, by emergency regulations.

Rigidity of sections
45. Section 44, or this section, shall not be altered except by a majority of eighty Knesset members.

Application of rigidity (Amendment Number 15)
45A. Section 45 shall also apply with regard to altering Section 9A (a).

When a special majority is required (Amendments Numbers 3, 11, and 15)
46. Under this law, changing Sections 4, 9A, 34, 44, or 45 shall require a majority vote by the Knesset plenum for first, second, and third readings; under this section, "change" is either explicit or implicit."

The discussion will be deferred to a later debate on the means of amending the Constitution.