One thing is certain: The gag order on the Zygier case was imposed legally, fully authorized by the law, via court judges.
In this case, the decision was made by Supreme Court justices, who received the case after appeals from lower courts. There are judges in Jerusalem. It is possible and often desirable to disagree with their decisions, but court decisions apply to every citizen in the country. This is the basis for the existence of the rule of law. In a state of law, observance of law and respect for court decisions also obligates elected officials. Equality before the law is one of the basic principles of the rule of law.
Personally, I struggle to express an unequivocal opinion as to whether the gag order was justified. I don't have all of the details or the considerations that the decision-makers in the matter had. In principle, I strongly believe that the decision-makers in the security establishment and the political and legal system are human beings and, as such, are not infallible. In my understanding, though perhaps not knowing all the relevant information, the continued imposition of a sweeping gag order following the Australian broadcast of the story was unjustified.
What can be said, however, is that the MK's from the radical Left — Ahmad Tibi, Dov Khenin and Zehava Gal-On — displayed contempt for the law and willfully violated the court's decisions when they spoke on live Knesset television last Tuesday with details about the Zygier case. Later they explained that in such cases, they enjoy complete immunity, despite violating a gag order.
Parliamentary immunity is designed to protect MKs from government harassment, not to abuse their power to harm the opposition. It is intended to prevent, for example, the arrest of opposition MKs under false pretenses just before an important parliamentary vote. It is designed to prevent police harassment of some government officials that the government perhaps wants to injure.
Parliamentary immunity in Israel is all encompassing; but in light of the main corruption and criminal cases against MKs, and the fear that the Knesset will be used as a haven for criminal offenders, the legislation has been adjusted. Now MKs will struggle to escape criminal legal action because of their immunity.
Substantive immunity, in contrast, is designed to protect an MK who has committed an offense within the framework of his or her parliamentary position. MKs who commit offenses and then exercise immunity claim that their actions were in the line of duty and compliment their mission, to represent the public that elected them and protect the world view they represent. This immunity is absolute, if the claim is accepted that the action in question was committed in the framework of the law.
I'll illustrate with two examples, from both ends of the political spectrum. MK Moshe Feiglin was arrested in the past while praying at the Temple Mount, which is against the law. Now, as a Knesset member who fought against this law, Feiglin could quite rightly argue that substantive immunity allows him to make his past actions declarative. In another extreme case, we have the participation of MK Hanin Zoabi in the 2010 Mavi Marmara Gaza flotilla incident. Although this was an extreme case of a law being violated and action taken against state security, Zoabi was not tried in a criminal court, because of her immunity.
Does substantive immunity apply to violating a court gag order? I see a fundamental difference between this offense and those described in the aforementioned examples. Even if Feiglin violated the law on the Temple Mount, it was the violation of a specific law and does not change the overall situation in the country. The Mavi Marmara incident would have occurred whether Zoabi had been on board or not. In contrast, when MKs violate a gag order on live Knesset television, it turns the decree into a "dead order," and causes the court order to be a failure. For me, no MK deserves this privilege and substantive immunity should not apply.
Recently, we have often spoken of "new politics." It seems only appropriate that we adopt a political system that respects the law, in which MKs set a personal example by respecting the law as well.