One of the most fundamental values in a democracy is the right of political participation, derived the right to vote and be elected. The “paradox of a defensive democracy” raises the question of the extent to which a democratic regime is entitled to fight against parties within it that challenge its basic values. On the one hand, democracy must be protected against those who, while seeking to gain power legitimately, ultimately place it at risk. On the other hand, the more a democracy struggles against parties the faster democratic values will erode. Party disqualification is problematic when it is based on the holding of positions that do not conform to the consensus—rather than the issuing of anti-democratic statements.
In Israel, electoral rights are entrusted to the Central Elections Committee for the Knesset (the Israeli Parliament) and the Supreme Court. Under the Knesset Elections Law, the Israeli Central Elections Committee (CEC) is charged with conducting the elections for the upcoming Knesset. The committee is composed of Knesset members representing various parliamentary groups and chaired by a Supreme Court of Justice. One of its central tasks is to decide whether a particular candidate or list should be prohibited from participating in the elections because its goals or actions negate the existence of the State of Israel under section 7A of the Basic Law: Knesset (1985). According to this, a list or person is ineligible to stand for the Knesset elections if he/she/it:
- Denies the existence of the State of Israel as a Jewish and democratic state;
- Incites to racism;
- Supports armed struggle by an enemy state or terrorist organization against the State of Israel.
The Basic Law states that a decision to disqualify a party “requires the approval of the Supreme Court.” Its general language (especially Clause 1) in principle allows for the disqualification of non-consensual opinions in Israeli society, ostensibly based on one of the three reasons adduced. The political establishment clearly has the right to appeal to Clause 7A in order to reduce the scope of the parties. 7A (1) indicates that any non-Zionist-party activity can be defined as negating the existence of Israel as a Jewish state. In 1988, Meir Shamgar, the then President of the Supreme Court, proposed a solution in the form of a probabilistic-evidence test. This determines that a party cannot be disqualified under section 7A (1) unless its purposes or actions can be proven to constitute a tangible and almost certain danger to the security of the state. 7A (1) thus allows non-Zionist Palestinian Arab lists whose members are willing to act within the framework of the political procedure of the State of Israel eligible to participate in the political process.
Prior to the 2019 elections, only three parties had been disqualified from running for the Knesset: the Socialist Party in 1965, on the grounds that its members belonged to the Al-Arad group— a national-Arab political leftist movement that denied the existence of the State of Israel as a Jewish State (prior to the 1985 amendment); Kach (Rabbi Meir Kahane) in 1998, on the grounds that its goals and actions were clearly racist; and two of Rabbi Meir Kahane’s followers at the end of the process in 1992 .
Over the past 17 years, however, the CEC has disqualified an Arab list or candidate in every election except for one, the High Court always then overturning this decision. This recurrent pattern undermines trust in both the committee and the court. In the current elections, the CEC disqualified Ofer Kassif from Hadash (an Arab party) and Balad-Ra’am (another Arab party) on the grounds that they reject the existence of Israel as a Jewish State and support terror. Two members of Jewish Power, an extreme right-wing party—Michael Ben-Ari and Itamar Ben-Gvir—were charged with incitement to racism. Even though the Attorney General sought Ben Ari’s disqualification, the election committee approved his and Ben-Gvir’s candidacy.
Eventually, the Supreme Court overturned the CEC’s decision disqualifying Michael Ben-Ari, stating: “In this matter, we adopted the opinion of the Attorney General, according to which Dr. Ben Ari’s actions and remarks are an incitement to racism and constitute a dominant and central goal of his doctrine.” This was the first time a specific candidate had been disqualified from running for the Knesset. At the same time, however, the court stated in regard to Ofer Kassif and Balad-Ra’am that: “No sufficient evidence was brought before the court proving the grounds for support by these parties for armed struggle against the State of Israel or denying the existence of the State of Israel as a Jewish and democratic State.” Although the court expressed concerns over Kassif’s comparison of Israel with Nazi Germany, it did not deem this sufficient grounds to disqualify him. Itamar Ben-Gvir’s candidacy was similarly left to stand due to lack of sufficient evidence for incitement to racism.
Right-wing politicians and Justice Minister Ayelet Shaked, known for her criticism and attacks on the Supreme Court, heavily criticized this ruling: “The High Court of Justices broke the rope and turned themselves into a political factor. The High Court’s decision to disqualify Ben-Ari on the one hand and authorize terror-supporting parties on the other is a blatant infringement of the core of Israeli democracy.” The real question, however, is whether the CEC conforms to the democratic process. In light of the most basic right to vote and be elected, candidates and parties, should only be disqualified in extreme cases, after substantial evidence has been presented against them. In determining those parties or candidates which are ineligible to run in the elections, the CEC is driven by political rather than legal interests. A political body composed of representatives of the parliamentary groups serving in the Knesset, its rulings represent thus political decisions guided by their party rather than rational judgments. It is paradoxical that representatives from the ruling coalition can determine who will not be allowed to face them in the next elections. The recurring disqualification of Arab parties represents a democratic regression in Israel—especially in light of the Supreme Court’s ruling that they do not hold the State of Israel to be non-Jewish or undemocratic.
Court effectively serves as the last defender of the right to be elected. Until
recently, while no Arab party had been prevented from participating in the
elections, extreme right-wing parties and candidate had. The discussion of a 2015
bill (and again in 2017) revoking the right to appeal decisions of the Central
Elections Committee and making the ruling of political committee “final,
conclusive, and irrevocable” undermined the democratic character of Israel in
its most basic and formal sense—namely, the holding of free elections.[i] No
political body (i.e., the CEC) can be granted exclusive authority to disqualify
candidates and/or lists from standing for the Knesset without supervision. By their
very nature weighing political considerations, political committees must be
subject to judicial review.