The Supreme Court Has Again Rescued the Shards of Israeli Democracy

While the Supreme Court may have overturned the Central Elections Committee’s disqualification of MK Hanin Zuabi as a candidate in next month’s election, the severe problems stemming from the existence of a political election committee still remain.

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

This time too, Knesset members, the Central Elections Committee and the Supreme Court all played their well-practiced roles: MKs from the right, members of the coalition representing the majority of the election committee, manage to bar an Arab candidate or party from running. The Supreme Court is called upon to settle the issue and overturns the decision. And, this time too, MKs make patriotic, populist political hay as the affair runs its course, while the Supreme Court protects the Israeli electoral system from losing the appearance of democracy. This time, the game focused on Balad party MK Hanin Zuabi.

On Sunday, the Supreme Court decided “not to approve” the Central Elections Committee’s decision to disqualify Zuabi’s candidacy. As indicated by the phrasing of the court’s decision, what was at stake wasn’t exactly a petition. The Basic Law on the Knesset states that when a single candidate is disqualified, theSupreme Court must approve the disqualification. While the banning of a party could lead to a High Court petition, the banning of an individual candidate automatically goes to the court for approval, and the court then debates the ban in the presence of nine justices.

This is not the first time the Supreme Court has declined to approve the disqualification of a candidate or party, but in contrast to previous decisions on Balad and MK Azmi Bishara, the decision on Zuabi was unanimous. In fact, it seems as if, when it comes to the banning of parties and candidates, everyone reprises previous roles. The Knesset expands the pretexts for banning in a way that is very clearly aimed at Arab MKs: In recent years, the option of banning individual candidates rather than an entire party has been added; the pretext of support for the armed struggle of an enemy nation or terrorist nation against Israel has also been added, as has the (contestable) presumption that a candidate who spent any time in an enemy country has ipso facto expressed support for it.

The Central Elections Committee, where the right enjoys a majority, bars Arab candidates and political parties on the basis of their supporting the armed struggle against Israel and denying the existence of Israel as a Jewish state. Arab MKs claim they are not, in fact, guilty of these allegations and in this ritual, try to modify or rephrase their statements – especially about denying Israel as a Jewish state – so as not to be caught supporting forbidden positions.

Most of the left makes no effort to disqualify racist parties, knowing this is the price they have to pay to oppose the disqualification of the Arab lists. The Supreme Court pulls the chestnuts out of the fire by overturning the bans, while setting ever-higher criteria so as to allow disqualifications only in the most extreme cases. Thereby the Supreme Court saves the Israeli electoral system from loss of legitimacy because of wholesale banning of Arab parties and candidates.

The rules of the game are familiar. The elections committee members intent on banning Arabs candidates and parties know that, on the one hand, they will earn political capital by presenting themselves as patriots willing to take a heroic stand against those the public loves to hate but, on the other hand, the chances are high that the Supreme Court will overturn the ban and save everyone from the need to face international criticism and internal revolt.

Therefore, the Central Elections Committee barred Zuabi from running and rejected the banning of Otzma Leyisrael on the grounds it is racist, but blocked the attempted wholesale disqualification of Arab parties tried in the past. This may be due to the Supreme Court’s ruling that parties may be disqualified only if they threaten “the core nature” of the banned activities and if these are the parties’ main goals.

The opinion supporting Sunday’s ruling has not yet been published, but during the debate itself, Zuabi’s lawyers – Hassan Jabareen and Sawsan Zaher of Adalah-the Legal Center for Arab Minority Rights in Israel – noted that Zuabi was never accused of supporting the armed struggle of a terrorist organization against Israel, even after the investigation of the Attorney General and the Turkel Commission on the events of the 2010 Gaza flotilla raid. Zuabi was aboard one of the ships in the flotilla.

Despite the Supreme Court’s overturning of the disqualifications, the problems inherent in the procedure of banning parties and candidates, as practiced for many years, remain in place. The first problem lies in giving this power to the Central Elections Committee, a political body; even if it is headed by a Supreme Court justice, everyone else on the committee is a political party representative. Thus, the nature of the committee’s membership creates a body reflecting the ratio of political power so that a political majority is able to go after a minority to try to keep it from participating in the electoral process.

The second serious issue is the clause allowing the disqualification of a candidate or party that denies the existence of the State of Israel as a Jewish state. This paragraph encroaches on the freedom of thought necessary to a democracy and limits the freedom of action of political parties – especially Arab parties – interested in promoting a different understanding of the nature of the state.

The third problem is the ineffectuality of enforcing the ban on racist parties, partly the result of the concern that granting legitimacy to any disqualification could lead to the disqualification of Arab parties in a way that would impair the country’s democracy.

MK Haneen Zoabi (Balad) speaking in the Israeli Knesset, Jerusalem, March 23, 2011.Credit: Michal Fattal

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