Analysis

By Barring Kahanist, Israel's Supreme Court Did Its Job: Protecting Democracy

In a democracy, one must be particularly wary of a political majority that seeks to deny a national minority political representation

Otzma Yehudit’s Michael Ben Ari receiving the news that his party was barred from running in the election, March 17, 2019.
Emil Salman

The Supreme Court denied all the disqualifications of Knesset candidates, except for that of Otzma Yehudit’s Michael Ben Ari. It allowed the Balad-United Arab List list to run, along with Hadash candidate Ofer Cassif, both of whom had been disqualified by the Central Elections Committee.

It also dismissed the appeal against allowing of Hadash-Ta’al to run. The court thus followed the advice of Attorney General Avichai Mendelblit and refrained from backing Israeli politics at its worst, as reflected in the decisions of the Central Elections Committee (other than in the case of Hadash-Ta’al).

>> Read more: Israel's top court bans Kahanist leader from election run, okays Arab slates, far-left candidate

Haaretz Weekly, Episode 19Haaretz

The court did what was expected of it. It decided in accordance with the longtime judicial tradition it had formulated. Anyone who had bothered to read its previous rulings in similar cases would have understand that only in the event of a revolution, which there was no reason to expect, would the outcome have been different.

The court’s consistent approach is that disqualifying a party or a candidate is an extreme move that seriously undermines basic rights, first and foremost the right to be elected, but also the right to vote; freedom of expression; the right to equality and the right to assembly. It is a step that should only be taken in the most radical, unequivocal instances where there is no choice but to invalidate a candidacy.

Despite this clear and consistent approach by the High Court, the Central Elections Committee bluntly rejected this binding legal doctrine and made “law” for itself. It did not act out of obedience to the law but out of political-populist considerations. It proved yet again that it cannot rise to a statesmanlike-democratic outlook, which is why it should be replaced by an independent, apolitical panel while preserving the Supreme Court’s authority as a full partner in the process.

In a democracy, one must be particularly wary of a political majority that is national-ethnic in essence, and that seeks to silence a national minority and deny it political representation. In Israel’s special circumstances, and in light of the Palestinian-Israeli conflict, it is not surprising that there is a large gap between the minority’s perspective and that of the majority. Even when the minority’s perception is anathema to the majority, democracy requires the majority to tolerate it.

That is the meaning of democracy. Not democracy from the dubious school of thought of the prime minister, who declared that Israel is not a state of all its citizens, but democracy as understood by every youngster – one of all its citizens, even if it is the nation-state of most of them.

One must also make sure that out of a supposed desire to protect democracy, democracy isn’t trampled on by those who believe that expressing angry and outrageous opinions, including curses and derogatory remarks, is grounds for disqualification.

Ben Ari’s case is different. Studying the things he has said, as the attorney general did, revealed incitement to racism of the most disgusting, dangerous kind. Precisely because he relates to Arab citizens of Israel not only as dogs and traitors, but as an enemy (except, he said, for 1 percent), his words may fall on attentive ears. It’s a good thing the Knesset will be spared the disgrace that the Israeli right doesn’t mind causing it. This is indeed the type of extreme case that makes the disqualification inevitable.

Truth be told, the difference between Ben Ari and his faction colleagues, especially Itamar Ben-Gvir (whom the Supreme Court allowed to run), is slim, and some will say it is faint to nonexistent. In a proper democracy in the Jewish state, Otzma Yehudit should not be in politics at all. However, in our damaged, shaky democracy, we may need constant reminders of its dismal state, in the form of Otzma Yehudit in the Knesset, perhaps also in the cabinet and on the judicial appointments committee. Perhaps this would be enough to jolt awake the anxious Israeli in his armchair.

It may also be unfair to distinguish between the loyal students of Rabbi Meir Kahane and admirers of Baruch Goldstein on one hand, and the supposedly kosher right-wing, which is composed of nationalists, and Arab-haters who differ from Otzma Yehudit mainly by not fully expressing their feelings and intentions, on the other. The shameful reactions of the right to the court decision and its leadership’s support of Ben Ari testify to this like a thousand witnesses. The connection of the Israeli right to anti-Semitic regimes and its support of Jews who are anti-Semitic Arab-haters is a frightening spectacle.

In the various decisions (except for the decision on Hadash-Ta’al, which was unanimous), there was a minority opinion of one. In the cases of Cassif and Balad-UAL it was Justice David Mintz, and in the case of Ben Ari it was Justice Noam Sohlberg. Since the court’s rulings have not been explained, it wouldn’t be right to try to address these minority opinions. In the past there have also been individual justices, like Elyakim Rubinstein and the late Edmund Levy, who did not subscribe to the majority view in such cases.

The Supreme Court is the bastion that protects our democracy, protecting it even from itself, from the political majority that seeks tyrannical control. Those who thought they had fomented a revolution on the court ought to reassess this pretense. There is no doubt that the Israeli right will seek to rid itself of the Supreme Court, precisely because it defends democracy. If we do not protect the court, it will not be able to protect us.