High Court was right to let controversial Arab MK run, legal experts say

Strict interpretation of the law would lead to numerous political bans, scholars say, and Israel is plenty strong enough to allow Hanin Zoabi’s radical parliamentary dissent

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Hanin Zoabi (photo credit: Flash90)
Hanin Zoabi (photo credit: Flash90)

The High Court was justified in overturning the decision to ban Arab-Israeli MK Hanin Zoabi from running for the Knesset in the upcoming elections, several legal experts said Sunday. The politicians who called for her ouster acted out of populist, hypocritical motives, with the ultimate goal of undermining the Court, and the law that seemingly supports the Central Election Committee’s original verdict is outdated, they argued.

Right-wing politicians who opposed Zoabi’s candidature claimed Israeli law disqualifies individuals and parties that espouse certain illegitimate political views, quoting the 1988 decision to outlaw the extremist Kach party because of racism. The petition against Zoabi — accepted by the Central Elections Committee, but rejected Sunday by the High Court — claimed that she undermined the state and its institutions by participating in the Mavi Marmara flotilla that tried to breach the Israeli blockade of the Gaza Strip in May 2010.

While a strict reading of the law technically sufficed to disqualify the Balad politician, the same would be true for several other politicians and parties represented in the Knesset, several legal scholars argued. But the law is somewhat obsolete — one senior jurist even said he would abrogate it altogether — and it is in Israel’s interest to have all voices heard in parliament, even if they seemingly contradict the law and challenge the democratic and Jewish foundations of the state, they said.

Israel’s parliamentary democracy, they noted, is sufficiently robust to withstand even radical political dissent.

“It’s the court’s job to interpret the law. In this case, the court interprets the law very broadly. This makes perfect sense because we live in a country where if we were to interpret this law very rigidly, we would have to disqualify the entire right and left and all Haredi parties,” said Hebrew University law professor Gideon Rahat.

“What would we gain by that? If these groups did not have the right to express their views in the political sphere, they would seek to express them elsewhere,” said Rahat, who is also a senior researcher at the Israel Democracy Institute. “Who would win from such a situation? The whole point of a democratic state is to include as many [disparate political viewpoints in parliament] as possible.”

Right-wing MKs, led by the Likud’s Ofir Akunis and Danny Danon, had tried to prevent the controversial Zoabi from running in the January 22 elections based on her participation in the 2010 Turkish flotilla that aimed to break Israel’s Gaza blockade and her anti-Zionist views. Earlier this month, the Central Election Committee banned Zoabi but on Sunday the High Court overturned the decision, sparking harsh criticism from the right. Attorney General Yehuda Weinstein, the government’s top legal official, had already stated he saw no basis for banning any of this year’s prospective Knesset candidates.

Bar-Ilan University law professor Yedidia Stern, a vice president at the Israel Democracy Institute, said that a democracy is allowed to set legal limits to protect itself, but that the courts nowadays are very careful before barring anyone from running for Knesset.

“In the current situation, the Jewish character of the state is very secure, so the fact that one or two MKs are challenging it is not such a big deal from a practical point of view. If Zoabi and the whole [Balad] party would not participate in the elections, it would be against the interest of the state of Israel because then we would project to the entire world, and to ourselves, that not all views could be heard here. Let her talk.”

‘Let us challenge her politically and ideologically, but not legally’

Zoabi’s party, Balad, had announced that if she were prevented from running, the entire party would withdraw from the elections. This could have led to the entire Arab sector boycotting the elections, which wouldn’t help the Zionist cause in any way, Stern posited.

While his stomach turns whenever Zoabi makes vitriolic comments about Israel, it is in the state’s own interest to grant her the legal right to say whatever she thinks. “Let us challenge her politically and ideologically, but not legally,” Stern said.

The High Court ruling overturned the Knesset’s ability to govern, Akunis had protested earlier Sunday, soon after the High Court, in an expanded panel of nine led by Court President Asher Grunis, issued its widely anticipated decision to let Zoabi run. “If judges just canceled a law that is one of the bases of Israel’s existence, then I can only be sorry,” he said.

What does the law say about banning people from being elected because of their views?

In 1985, after the extremist Kach party of US-born Rabbi Meir Kahane surged in popularity, Basic Law: The Knesset was amended to disqualify him from running. This is what the law says now:

A candidates’ list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following:

1) negation of the existence of the State of Israel as the state of the Jewish people;
2) negation of the democratic character of the State;
3) incitement to racism.

While Kahane was elected to the Knesset in 1984 and served four years, the Central Election Committee barred him from running again in 1988 because his party’s aims and actions were found to be manifestly racist.

For many right-wingers, this precedent clearly shows that some politicians should be banned if they espouse values contradicting the law.

“Just like the democratic system removed Rabbi Kahane, I don’t see any reason for Hanin Zoabi to be in the Knesset,” Danon told The Times of Israel in a recent interview. If Zoabi isn’t disqualified, the law is meaningless and should be erased from the books, he said.

But if you really enforced the law, you’d have to disqualify many more candidates than just Zoabi, countered Rahat, the law professor, Sunday.

“It’s true that you could disqualify the Arab parties because of that law — but then you’d also have to disqualify the right-wing parties on the basis of racism, and the Haredim because of the [negation of] democracy,” as they favor a halachic system based on the rules of the Torah over democracy, he said.

In 1985, when the law was amended to exclude Kahane, this might have been the right choice “in the political context,” but today such provisions are no longer necessary, Rahat said. He noted that Kahane’s political heirs — such as Michael Ben Ari and Baruch Marzel of the Otzma Leyisrael party — are not being banned despite having questionable political goals, he said.

The court has the right to interpret the law in as broad a sense as it sees fit, Rahat added. The law is rather “superfluous,” he said, adding that its only achievement is that Ben Ari, Marzel and other Kahanists are a bit more careful in how they formulate their political platform.

Baruch Marzel speaks with MK Michael Ben-Ari, Sep 6 2012. (photo credit: Yoav Ari Dudkevitch/Flash90)
Baruch Marzel, left, speaks with MK Michael Ben Ari, Sepember 6, 2012. (photo credit: Yoav Ari Dudkevitch/Flash90)

“Today, they don’t dare say what Kahane used to say then, not in the same words,” he said.

According to Dan Yakir, the chief legal counsel of the Association for Civil Rights in Israel, Sunday’s High Court decision to let Zoabi run “probably reflects a lack of evidence that Zoabi sought to negate the existence of the state of Israel as a Jewish state, whereas in the Kahane case, presumably the committee was able to bring evidence of incitement to racism.”

“Disqualifying candidates and parties is an extreme measure and should be avoided whenever possible,” Yakir had said earlier this month. “Among the candidates and party lists for the next Knesset, there is no one — neither on the right, nor the left — who should have this extreme decision taken against him or her. Unfortunately, in every election cycle, there are those who strive towards an antagonistic, undemocratic process out of populist and cynical considerations.”

Stern, the Bar-Ilan law expert, said he is happy about the court being much more careful now not to disqualify anybody, whether from the right or the left. “I don’t think Zoabi or Marzel is making any difference, or poses any real threat to the character of the state. And if in reality there is no such danger, if we’re talking about negligible ideas, then let them be represented in the Knesset.”

If if were up to him, Stern said, he would change the law drastically, because in its current form it is too broad.

“The whole thing is just hypocrisy,” he said. Those who called for Zoabi’s disqualification, and the committee that ruled on it, knew very well from historical precedent that the court would eventually overturn the decision, he said. “The main reason for doing the whole thing is obviously to incite, and to be able to attack the High Court eventually. The target is not necessarily Zoabi. The target is the liberal values of the state of Israel.”

Matti Friedman contributed to this article.

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