Legal analysis / Proof is required

The decision of the Central Election Committee to disqualify the United Arab List-Ta'al and Balad from running for the Knesset is based mainly on an amendment to the Basic Law on the Knesset from May 2002. The amendment states that a Knesset list may be disqualified if its goals or acts either explicitly or implicitly support the armed struggle of an enemy country or a terror organization against Israel. The law indicates that tangible evidence is needed to prove the support of and identification with the armed struggle against Israel.

The disqualification can be appealed before the High Court of Justice. In 2003 the High Court approved, by a majority of seven justices to four, Balad's participation in the elections. The entire bench ruled in principle that in order to disqualify a party, cause would have to be shown that it is working "on the ground" to realize its goals and that a prohibited goal is the one "governing" it. This would have to be shown, the justices ruled, because disqualifying a party list from participating in elections is an "extreme step" that limits the right to vote and stand for election, which is a "constitutional right of the first order."

The ruling stressed that the evidence for the presence of a prohibited goal had to be "clear, persuasive and unambiguous." The majority opinion overturned the Election Committee's decision to disqualify the list because insufficient evidence had been presented to negate the right of the list to participate. The minority opinion stated that the material presented to the committee and the court constituted sufficient evidence of the support of both the list and its candidates for an armed struggle by terror organizations against the state.

In the past ruling, the court stated that it would not hesitate to invoke judicial oversight over the committee's decisions and would give great weight to the right to run for Knesset. The decision of the Election Committee is fundamentally political, while the High Court will base its decision mainly on the principle that only in extraordinary circumstances may democracy be limited.

Of the 11 justices who passed the ruling in principle in 2003 against disqualifying the lists and its candidates, only four are still serving on the bench. It is reasonable to assume that the High Court president will determine that an expanded bench will hear the expected appeal of yesterday's decision disqualifying the two parties. The court will have to render its decision in the time alloted by the law, but can publish its reasons at a later date.