This week, the Knesset is slated to vote on the second and third readings of a proposal to amend the Basic Law on The Knesset. The proposal touches on the most sensitive nerve in Israeli democracy - the right of lists of candidates to run in the race for the Knesset.
A ruling by the Supreme Court, which refused to approve the disqualification of Meir Kahane's list in the absence of an explicit authorization in the law, prompted the Knesset in 1985 to approve an amendment to the Basic Law on The Knesset that, for the first time, authorized the Central Elections Committee to disqualify a list on the grounds of its ideological platform. The amendment covers the eventuality that such a list's platform or deeds are tantamount to the denial of the existence of the State of Israel as the state of the Jewish people, or the denial of its democratic nature, or incitement to racism.
The amendment was aimed at providing Israeli democracy with tools to protect itself from elements that wish to exploit it in order to undermine its foundations. The authority to disqualify lists, to restrict the right to run for political office, was limited by a ruling of the Supreme Court, before which it is possible to appeal both the disqualification of a list and its approval.
It was stated - in rulings that confirmed the disqualification of the Kahane Lives list in 1992 - that a prohibited purpose that justifies disqualification must be "a key purpose of the list." The ruling stressed that the evidence as to the existence of an impermissible purpose must be "convincing, clear and unequivocal." Thus, for example, it is possible to assume that a single interview by a candidate on a list, or a statement that is not repeated, would not be sufficient to disqualify the list itself.
In 1998, in the spirit of this approach, the Supreme Court rejected an appeal against the approval of the Progressive List for Peace, ruling that it is impossible to determine unequivocally that "the real, central and active purpose [of the list] is to bring about the elimination of the State of Israel as the state of the Jewish people."
From the ruling as a whole emerges an approach that supports restricting the right to run on the grounds of an ideological platform only in the most extreme cases, in which a subversion of the state's very existence or its fundamental principles are expressed. The right to judicial review was emphatically explained in the ruling as a right aimed at preventing an inappropriate decision by the political ranks that make up the Central Elections Committee - that is, a decision that would deny an entry card to the Knesset based on considerations that are not at the very heart of a democracy's right to protect itself.
The new law that has been proposed, the approval of which requires a majority of 61 Knesset members, has won broad political support in the Knesset Constitution, Law and Justice Committee. Committee chairman MK Ophir Pines-Paz (Labor) led a move to restrict the right to disqualify a list, relative to what had been proposed in the legislative initiative by MK Yisrael Katz (Likud). According to the proposal that was formulated by the committee, the right to disqualify will be applicable only if a list supports an armed struggle by an enemy state or by a terror organization against the State of Israel; the fact that a list identifies with such a struggle would not suffice to disqualify it.
In addition to this stipulation of a new cause for disqualification, the proposal adopts the existing ruling, with insignificant changes in its formulation, and also allows for the disqualification of a list with the purpose of "denying the existence of the State of Israel as a Jewish and democratic state," or if it promotes "incitement to racism." An innovation in the proposal concerns the possibility of disqualifying specific candidates on a list, even if the list as a whole is approved. As the authority to disqualify individuals is particularly sensitive, the proposal states that a decision by the Central Elections Committee in such a case would require the approval of the Supreme Court.
Such a stipulation means that the court would have especially broad authority in judicial review, including overturning the opinion of the Central Elections Committee, at its own discretion. This would be in addition to the extent of its accepted authority in the case of a deliberation on an appeal against a decision by the committee. This authority to "confirm" is also broader than the extent of the judicial review that is the norm in the High Court of Justice, which does not tend to overrule an authority's considerations with considerations of its own, and intervenes only in cases of extreme unreasonableness.
This approach, of a need for "confirmation," should also be adopted with respect to the disqualification of an entire list - for any reason whatsoever. There now exists the right to appeal a decision to disqualify a list to the Supreme Court, but without a requirement to obtain its approval close to the time the decision is made. The need for judicial confirmation is recognized in Israeli law when a particularly harsh violation of individual rights is at issue, as, for example, in the case of administrative detention. It would seem that the broadest possible judicial review is justified when restrictions on running in a political race are involved.
The proposed new law, which expands an instruction that has been current for 17 years, is, like its predecessor, the result of a political reality. On the basis of past experience, it may be assumed that restricting the right to be elected to the Knesset will be applied in a restrained and proportional manner, in extreme cases only. Decisions by the Central Elections Committee that are not in this spirit will, in any case, be subject to review by the Supreme Court, whether through the need to have the fact of the decision approved, which seems preferable, or - in the worst case - through the right to appeal the disqualification of a list.
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