The Movement for Government Integrity, led by Attorney Mordechai Eisenberg, appealed, as reported in Haredim10, to the Knesset's legal advisor to invalidate the signatures of MKs who are running for the presidency of the state, and also to not allow them to vote for themselves for fear of a conflict of interest. On Thursday, the legal advisor sent the detailed letter of response, in which he rejects Eisenberg's proposal for several reasons.
First, the Legal Advisor notes that the method of electing the President of the State is enshrined in the Basic Law - the President of the State, and even at the time the Basic Law (1964) was enacted, the situation in which members of Knesset take part in the contest was known and even practiced in practice, yet no restrictions were set on their participation in the vote. Yinon notes that in the 12th Knesset (1990), MK Shevch Weiss placed on the Knesset table a proposal to amend the Basic Law (Proposal No. 547) according to which 'if among the candidates there was a candidate who was a member of Knesset, he would not participate in the vote'. In the explanatory notes to the proposal, it was noted that its purpose was 'to prevent a situation in which the President of the State would be elected by virtue of his own vote' and that 'it is desirable to remove the President of the State from such a cycle of self-selection'. However, this proposal was not even advanced to preliminary reading.
The wise men choose themselves
The legal advisor adds that looking at the Knesset plenum is not similar to looking at a regular administrative or governmental body: "The Knesset and its plenum are perceived as a special constitutional unit. Similarly, looking at Knesset members is not similar to looking at ordinary public servants with regard to the issue of conflict of interest.
This perception leads to the Knesset plenary not operating with an incomplete composition, and therefore, unlike the example you asked to learn from – the assembly that elects the Chief Rabbis – where the Attorney General assumed that in the event of a member being disqualified due to a conflict of interest, the deficiency can be filled, this cannot be done in the Knesset plenary.
This perception also leads to Knesset members routinely voting in the Knesset plenum on matters that directly or indirectly affect them and their relatives, whether in legislation or other decisions, including participating in votes in which they themselves are up for election (elections for the position of Knesset Speaker, Knesset Deputy Speaker, Knesset representatives on committees for selecting judicial office holders, etc.).".
Yinon also says that a similar situation also exists in election procedures conducted in Knesset committees. In these procedures, a situation sometimes arises in which some of the Knesset members who are running can vote, as they are committee members, while candidates who are not committee members cannot take part in the vote, such as in a vote on the recommendation of Knesset committees for the position of committee chairman or an election for the position of Knesset representative on the committee that proposes candidates for the office of Attorney General, which is held in the Constitution Committee.
The Presidential Election: Not a Judicial Issue
A third point that emerges from the advisor's remarks is that where the Knesset believed that a Knesset member should be prevented from voting on his personal matter, such as in quasi-judicial proceedings held in a Knesset committee, it expressly stipulated [Article 116 (b) of the Knesset Rules of Procedure] that a Knesset member who is a member of a Knesset committee shall not participate as a member of the committee in discussions and votes regarding the determination or lifting of his immunity, the imposition of restrictions on his ability to perform certain functions in or on behalf of the Knesset, the determination that the Knesset member has resigned from his party, and the denial of payments from a Knesset member.
""It therefore seems," says Yinon, "that in circumstances where there is a detailed arrangement in the Basic Law regarding the manner of election that does not include any restriction on the voting of Knesset members, and the practice that has existed for decades is that Knesset members running for president are allowed to vote, and that this practice is based on fundamental concepts regarding the status of the Knesset plenum and the voting patterns therein, there is no room, in my opinion, for creating restrictions and prohibitions out of thin air by way of legal opinions.".
The advisor concludes his response by arguing that the timing of this issue now and the demand to change the rules that have been in place for years just a few days before the vote undermines the principle that 'the rules of the game should not be changed while the game is in progress'. "All the more so, I do not believe that there is room to make such changes by way of interpretation so close to the election date (incidentally, such an interpretation would require additional determinations, for example, what is the 'majority of Knesset members' required in the first round in the event that not all Knesset members are allowed to vote, a matter that is not appropriate to regulate by way of interpretation).".
The changes proposed by Eisenberg, therefore, are proposed by the Legal Advisor to be implemented without the need for an election process that is currently underway, and in any case, even if this is decided, it should be done through a legislative amendment.
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