Attorney General Gali Baharav-Miara is quite clear when it comes to her demand that Prime Minister Benjamin Netanyahu adhere to the conflict-of-interest agreement that he signed, which prohibits him from dealing in any way with the planned judicial overhaul. She even rejected a request from President Isaac Herzog to allow Netanyahu to spearhead discussions aimed at reaching a compromise. Baharav-Miara has also declared that two other Knesset members are in conflict of interest: MK David Bitan (Likud), who has been charged with accepting a bribe and whose trial is currently taking place in the Lod District Court, and MK Aryeh Dery (Shas), who abstained from voting in favor of the Dery Law 2, a proposal that would prevent the High Court from exercising judicial oversight in the appointment of ministers.

There is just one limitation, which is enshrined in Clause 6 of the Rules of Ethics for Members of the Knesset, although that, too, depends on the Knesset’s legal adviser, Sagit Afik, insisting that it is upheld. Before they vote, the three Knesset members must publicly declare in the Knesset plenum in what way they are in a conflict of interest.

On the eve of the Knesset vote this week (Monday), it was assumed that Netanyahu would not be present for the votes on changes to the judicial system since the coalition had enough votes to pass the legislation even without his presence, while Dery would absent himself from the dealing with his personal issue, which is what indeed happened with the bill came up for its first parliamentary reading on Wednesday. Given their defiance of the attorney general and the High Court, it is hard to say that this would happen because those politicians were embarrassed or confused; rather, it stemmed from cold calculations. Making a public statement of conflict of interests would be tantamount to publicly declaring that the legislation would have far-reaching personal implications. In the case of Netanyahu, this could serve the interests of those seeking to declare him unfit for office. In Dery’s case, it would serve the High Court appellants who want the Shas leader barred from returning to a ministerial position.

Dery, as mentioned, has yet to be put in a position where he has to decide, but Netanyahu, like David Bitan, voted this week in favor of changing the composition of the Judicial Appointments Committee without declaring that he is in a conflict of interest. Clearly, that legislation could have an impact on the criminal proceedings that Netanyahu is currently facing. Instead of making a full disclosure in their name, Knesset Speaker Amir Ohana made an evasive statement in Netanyahu’s name, which, rather than declaring that the prime minister is in a conflict of interests, seemed to deny that.

Reading from a written statement, Ohana said, “I would like to make a due diligence announcement for the protocol. As is well known, the attorney general argues that the prime minister is in a conflict of interest regarding the judicial reform because of the legal proceedings he is involved in. The prime minister disagrees with this assertion, and there are ongoing discussions on the matter. In any case, there is no disagreement, even from the attorney general, that the prime minister is not barred from participating in votes, and I am making this announcement for the record. The same is true in the case of MK Bitan, against whom there are also legal proceedings, and in that case, too, I am making this announcement for the record.”

This is not the first time that members of the Knesset have avoided making due-diligence statements in the plenum and have asked the speaker to do so for them. Nonetheless, the statement that Ohana read out shows that Netanyahu does not even recognize the conflict of interest about which he is supposed to make a declaration. For Afik, the Knesset’s legal adviser, the statement was apparently enough. Afik continues to refuse to answer questions: Did you or did you not instruct Netanyahu to make a statement about his conflict of interest? And, assuming you made such a request, what was the prime minister’s response to it?

A spokesperson for Akif, Aviel Magnazi, said in response, “We have no comment. I refer you to the fact that the Knesset speaker made a due diligence statement in the names of the prime minister and MK Bitan at yesterday’s plenum session.”

Why is this the case? Unlike the strict ethical rules governing the behavior of prime ministers and ministers, who have executive roles, the rules of the game in the Knesset are different. While Knesset committees have some flexibility since the division of seats is done by party and not assigned to a specific parliamentarian, in the Knesset plenum, it is not possible to prevent an MK from voting – even if they are in a conflict of interests regarding the issue being voted on. Preventing an MK from voting is tantamount to reducing the number of members of the Knesset since the barred MK cannot be replaced. If Netanyahu were a rank-and-file Knesset member, for example, and served as a member of the Knesset’s Constitution, Law and Justice Committee, Afik would have asked, based on the conflict-of-interest ruling issued by Baharav-Miara, that the Likud faction replace him with another Knesset member from the same party – ensuring that Likud’s representation on the committee was not harmed.

“The solution that the ethics committees came up with for voting in the Knesset plenum despite a conflict of interests,” says one source who has followed the committee’s activity, “is, before a vote in the plenum, the MK in question will stand up and say that he or she is in conflict of interest for this reason or that but is voting anyway.”

Is there any value to such a statement beyond its declarative nature?

“Prima facie, no. The vote of that MK is worth as much as any other lawmaker. But the public nature of the statement is significant. And the MKs usually want to save themselves the embarrassment.”

Future Mess

So, it turns out that Knesset members might feel embarrassed – and there are examples of this happening before. In the vote on the gas deal, for example, three Knesset members absented themselves from the plenum because of their connections to the gas companies – even though the attorney general at the time, Yehuda Weinstein, accepted the position of then-Knesset legal adviser Eyal Yinon, who ruled that the three would be allowed to vote if they publicly declared that they are in conflict of interest. They opted not to vote at all.

Another example came when the Knesset voted on the Recommendations Law, which determined that the police would hand investigation material to the prosecution without recommending whether to file an indictment. Six lawmakers – three from Likud and three from Balad – who were under criminal investigation at the time, were instructed not to participate in the discussions on the bill at the Knesset’s House Committee and Internal Affairs Committee and to make a public statement before voting in the Knesset plenum.

The wording of the bill was subsequently altered so that it would not apply to anyone who was already being investigated by the police, and the demand for a Knesset statement was dropped – but the three Likud MKs (Netanyahu, Bitan and Haim Katz) opted to absent themselves from the vote. In contrast, Jamal Zahalka, Haneen Zoabi and Joumah Azbarga – the three lawmakers from Balad, which was part of the Joint Arab List at the time – voted against the bill, along with the rest of the members of the opposition. Nonetheless, the legislation was approved by 59 votes to 54.

“It often happens that lawmakers prefer not to make such a statement in the plenum, even if it means that a subject close to their hearts does not pass because it could be messy for them in the future,” says one Knesset source. “Of course, only after they agree to pair off with a member of the opposition or if they are certain that the bill would pass without their vote.”

What happens if they vote without making the statement?

“They cannot be prevented from voting. Until today, it has never happened that a lawmaker who was in a conflict of interest and had to make a due disclosure statement voted without making the statement. If that were to happen, the Knesset’s legal adviser would have to draft a first-ever opinion about what to do.”

Would their vote be annulled?

“Probably not, especially if theirs was the decisive vote. It makes more sense that they would be subjected to some kind of sanction. In the Knesset, as it is today, that’s not really any deterrence.”