Analysis

Israel's Top Court Decided Not to Disqualify Arab Lawmaker, but Its Lack of Conviction Is Disturbing

The Supreme Court deliberated too much over the case of Joint List lawmaker Heba Yazbak. Shamefully, when it comes to Kahanists, it had no trouble making decisions

Heba Yazbak, center, with Joint List Knesset member Osama Saadi, left, and former Knesset member Jamal Zahalka at the Supreme Court.
Ohad Zwigenberg

The outcome was predictable for Heba Yazbak’s appeal to the Supreme Court of the Central Elections Committee’s decision to disqualify her from running in the March 2 Knesset election. The Supreme Court has consistently attached high importance to the right to run for election, a cornerstone of democracy. As a result, it has only confirmed disqualifications of candidates or party slates in extreme, exceptional cases.

Yazbak’s prior statements, despite their outrageous character, clearly didn’t constitute such a case – “not even close,” as Justice Menachem Mazuz put it.

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They were few in number and sporadic, they were not systematic and did not constitute a critical mass; and they were made seven years ago and then five years ago. Once she clarified her opposition to all forms of violence and illegal activity, in both Hebrew and Arabic, the idea of disqualifying her should have been dropped – which was also the view of Attorney General Avichai Mendelblit.

It is important to bear in mind that disqualification isn’t a punitive measure, but rather a preventive one. It is therefore unacceptable to resort to unless it’s clear that there is something that must be prevented (support for a terrorist organization’s armed struggle). Such a conclusion ought to be obvious even without the fine distinctions that the justices in the majority drew – for example, between support for an individual and for a terrorist act.

It is disturbing that four of the nine justices supported disqualifying Yazbak, who is running on the mainly Arab Joint List slate. That included Supreme Court President Esther Hayut, who wrote the main dissent. The dissenting justices objected to conditioning disqualification on the likelihood of the Joint List Knesset member’s support while in office for armed struggle, and ignored the criteria established in prior Supreme Court rulings.

Hayut found nothing positive in Yazbak’s explanations, even saying that some were no less troubling than her original statements. Justice Noam Sohlberg similarly dismissed Yazbak’s explanations, without even evaluating their credibility.

There are grounds for suspecting that what motivated the dissenting justices was revulsion at Yazbak’s statements, which triggered their “denunciation reflex,” as Justice Isaac Amit put it. Some of the majority justices even explicitly warned against the temptation to rule based on emotions and stressed the court’s obligation to withstand such a temptation.

As Hayut herself stated in a previous ruling, “disgust is one thing; grounds for disqualification from Knesset elections are another.” But when put to the test of particularly great disgust, Hayut followed her emotions rather than her own ruling, as is evident in her description of one of Yazbak’s explanations as “very hard to bear.”

Supreme Court President Esther Hayut
Ohad Zwigenberg

Regrettably, when they wanted to reach a specific conclusion, the dissenting justices were able to find that Yazbak’s few, sporadic statements were actually systematic, recurrent and consistent and constituted a critical mass, when in fact they were no such thing. To support their view, they were reduced to scrambling for “evidence,” such her visit to a prisoner jailed for security offenses or the pleasure that she expressed on his release, and then interpreted the actions as support for a terrorist organization’s armed smuggle. That is clearly at variance with both court precedent and the letter of the law.

Opposite conclusion

In arguing that disqualification requires support for a specific terrorist organization’s armed struggle, Justice Yosef Elron adopted a particularly stringent approach that should have persuaded him to grant Yazbak’s appeal. But he reached the opposite conclusion.

It is also bizarre that Supreme Court President Hayut quoted from a statement in a prior ruling that “terror and democracy are like fire and water, and can’t live together,” while ignoring the fact that Palestinian terrorists who are not affiliated with Hamas are not targeting Israeli democracy, but rather the antithesis of democracy – an occupation regime in which they don’t have civil rights.

What was particularly worrying about the minority’s conclusions, however, was their inconsistency with previous rulings. It is impossible, for example, to reconcile the court’s decision to give far-right extremist Baruch Marzel two opportunities to run for the Knesset based on his explanations, with the dissenters’ refusal to give Yazbak even one such chance. Nor is it possible to reconcile the lenient stance towards far-right extremist Itamar Ben-Gvir with the harshness toward Yazbak, since the weight of the evidence against him was far greater than the evidence against her, and included some very disturbing statements on his part over the past few years. Yet the court unanimously decided against disqualifying him, based on his explanations.

And it’s similarly hard to reconcile the generally lenient approach that Sohlberg and Justice David Mintz have adopted toward incitement to racism with their attitude toward Yazbak. How is it possible that the dissenting justices didn’t repeatedly ask themselves whether they were discriminating against the Arab minority compared to the Jewish majority – particularly when Justice Daphne Barak-Erez explicitly noted the problems with disqualifying Yazbak when she is compared to others who were not ruled off the ballot?

Test of equal treatment

Equal treatment of minorities is the foremost test of the Supreme Court’s actions. It is therefore regrettable that it passed the test by only a razor-thin margin. But the court was, in fact, unanimous in ruling that Yazbak couldn’t be disqualified on the grounds of rejecting Israel’s existence as a Jewish state (a pretext routinely cited in efforts to disqualify Arab parties and Arab Knesset members).

It also granted the appeal from the election committee’s unanimous disqualification of the Mishpat Tzedek party, which was founded by the wife of Yigal Amir, former Prime Minister Yitzhak Rabin’s assassin. The reason was simple: Party leader Larisa Trembovler-Amir made repulsive statements, but they didn’t contain any grounds for disqualification.

The Central Elections Committee has once again proven that rather than upholding the law, it acts outside of the law. It behaves like a kind of popular tribunal that disqualifies any party or candidate whose views it deems immoral or upsetting. Such lawlessness must stop. Even when the committee’s illegal decisions are overturned by the Supreme Court, they cause a great deal of damage. The committee should be replaced by an independent panel appointed by the president.