The petition submitted in recent days to the Central Election Committee seeking the disqualification of MK Haneen Zoabi, which has a high likelihood of being approved, was made possible by two 2002 amendments to the Basic Law: The Knesset. Until then, the Basic Law permitted only the disqualification of an entire slate of candidates, on the basis of its denying Israel’s existence as a Jewish and democratic state, or for racist incitement. The 2002 amendment made possible the outlawing of an individual candidate, and added the justification of “support for armed struggle of an enemy state or terrorist organization against the State of Israel.”
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The timing of the amendment, two years after the outbreak of the second intifada, indicates that the original intent was for this clause to be implemented against Arab MKs who expressed support for the Palestinian struggle. Due to this clause (as well as the one regarding denial of Israel’s existence as a Jewish state), Arab lists and candidates were outlawed by the Central Election Committee, made up of MKs and chaired by a Supreme Court justice, time after time. However, these rulings were almost never upheld by the Supreme Court.
The only lists whose disqualification was upheld by the Supreme Court were the one submitted by the Al-Ard national Arab movement in 1965 (banned, controversially, even before the amendment that allowed the outlawing of political parties went into effect), and the Kach party in the 1980s (and later some of its offshoots), due to its denial of Israel’s existence as a democratic state, and for racist incitement. The party’s election to the Knesset served as the trigger for the legislation of the amendment enabling the banning of certain political parties.
Over the years, the Supreme Court has ruled that only an infringement of the “core” parts of the different rationales for disqualification could lead to the banning of a party slate. It also ruled that since this constitutes a severe infringement of the right to be elected, and therefore a severe infringement of democracy, a party list or individual candidate may only be disqualified if it is clearly the case that the cause for that ban is a dominant characteristic of the party’s or candidate’s activity. The party slate or individual candidate must also be actively working in an extremely determined way to achieve these goals. And all of this must be backed up by “clear and convincing and unequivocal evidence.”
A ban against a party slate may be appealed in the Supreme Court, which holds a special “election appeals” process (which is not the same as the High Court of Justice petition process). On the other hand, a ban on an individual candidate requires the approval of the Supreme Court: In other words, there is no need to appeal the banning of a single candidate to the Supreme Court; its approval is an integral part of the process and the ban is not complete without it. Therefore, the Supreme Court emphasized, its role in the disqualification of an individual candidate is different than its role when it hears appeals regarding the disqualification of a party slate. In the former, it is not just hearing an appeal, but is a partner in the disqualification process, and so it has a greater degree of involvement. It does not only examine whether the decision is legal and reasonable, but whether it is the correct decision to make.
Prior to the previous Knesset election, the Supreme Court unanimously decided not to uphold the ban on Zoabi that came about following her participation in the 2010 flotilla to Gaza, saying that no proof was given of her support for the armed struggle of a terrorist organization against the state, in part because no connection was proven between Zoabi and the activists on the Marmara who acted violently.
This time the requests to disqualify Zoabi are based upon a number of statements she has made, which do not amount to sufficient justification to outlaw a candidate. Zoabi did refuse to label the kidnappers of the three Israeli teens last summer “terrorists,” but she did explicitly say that she was against the kidnapping, and there is certainly no “clear and convincing and unequivocal” proof that she supports a terrorist organization’s armed struggle. She explained several times that when she spoke of the need for a siege to be imposed upon Israel, she meant a diplomatic siege. And her harsh statements against Arab police officers surely do not constitute any expression of support for armed struggle.
A candidate mustn’t be disqualified just because she says things that enrage a lot of people. The fact that the Central Election Committee is expected to ban Zoabi regardless, even if the Supreme Court will likely once again not go along with it, shows that the authority granted by the Basic Law: The Knesset to the committee has become a political battering ram to be used by the majority against the minority, particularly for the persecution of Arab MKs. Thus, the time has come to revoke this authority from the Central Election Committee.