After party slates were filed last week, the next stage of Israel’s third election within a year is set to begin next week with the first Central Elections Committee deliberations on the disqualifying of candidates and parties from running in March.
In the only petition against a serving lawmaker from a major party, Joint List MK Heba Yazbak will likely be disqualified from running again for the Knesset, after senior Blue and White lawmaker Yair Lapid confirmed that his party would join Likud and others in backing a petition to blacklist her.
Yazbak, a member of the Arab nationalist Balad party in the Joint List alliance, is facing criticism over several of her Facebook posts, including one in 2015 in praise of Lebanese terrorist Samir Kuntar, who in 1979 took part in the brutal murder of members of an Israeli family in the northern city of Nahariya. The post included a picture of Kuntar with the inscription “The martyr fighter Samir Kuntar.”
Another post welcomed the end of a nine-year sentence for Amir Makhoul, who pleaded guilty to handing sensitive information to the Lebanese group Hezbollah. “After nine years in prison, Amir is back with the people again. Congratulations,” she wrote.
Israel’s election laws ban from running for Knesset anyone who openly supports armed conflict against Israel or incites racism.
According to “Basic Law: The Knesset,” the Central Elections Committee, headed by Supreme Court Justice Neal Hendel and staffed by representatives of the parties currently in the Knesset, must hear each petition against the would-be lawmakers before voting on whether they can run as candidates in the election.
The same law, however, states that a ruling by the committee to bar a candidate must be also upheld by the Supreme Court. So even if Yazbak is disqualified as expected, the Supreme Court may overturn the decision.
While the committee has often voted to disqualify various candidates and parties, the Supreme Court has only ever upheld a handful of such decisions. The Socialist Party was banned in 1964 and the far-right Kach and Kahana Chai parties were banned in 1988 and 1992, respectively. The court has only ever barred individual candidates ahead of 2019’s April and September elections when it upheld the disqualifications of Kahanist Otzma Yehudit candidates Michael Ben-Ari, Bentzi Gopstein and Baruch Marzel.
The system, with the Supreme Court regularly overruling the Central Elections Committee, is often criticized by those on the right who claim bias against them. They point to the fact that the committee has voted on a number of occasions to ban both the Balad party, which is today one of four making up the predominantly Arab Joint List, and several of its individual candidates, but the Supreme Court has almost only upheld disqualifications for far-right candidates and parties.
Defending such claims in a speech given shortly before the September elections, then-state prosecutor Shai Nitzan laid out his office’s — and also the Supreme Court’s — reasoning behind supporting certain petitions for disqualification and rejecting others. In doing so, and in specifically using Yazbak as an example, he also appeared to give instructions for how to build an effective case against the Joint List MK.
“I am well aware of claims of asymmetry, so to speak, on our part, with the argument that we support — supposedly – only the disqualification of Jews but oppose the disqualification of Arabs, even if they support terrorism,” Nitzan, who has since retired, told the Channel 2 “Influencers Conference” in Tel Aviv on September 5.
“These claims are unfounded, wrong and misleading,” he said, launching into a lengthy exposition of the state prosecution’s position regarding the disqualification of candidates: why Otzma Yehudit and one of its most prominent candidates were not banned while three of its other candidates were; why the prosecution has supported banning some Arab candidates and others, but not their parties as a whole; and, crucially, why Yazbak was not herself disqualified in the past, but could be in the future.
The first key condition needed to disqualify a candidate, according to Nitzan, is that the case unambiguously crosses the line of what is considered support for armed conflict against Israel or incitement of racism.
Regarding the Otzma Yehudit candidates, Nitzan said, “Our position was based on the fact that the evidence gathered in the applications for disqualification of the three showed that they were not borderline cases but cases that are deep in the realm of the justification required to disqualify of a candidate under the law for incitement to racism.”
Citing “the importance of the constitutional right to vote and to be elected,” Nitzan said that “at the heart of this position is the view that democracy can and must also deal with extreme and exceptional ideological positions, as long as they do not clearly and precisely meet the grounds for disqualification.”
Therefore, even “a slight doubt lowers the scales in favor of the candidate,” he said.
The second condition Nitzan cited was an “evidentiary mass” proving that “the objectives of the party or the candidate, and their actions, clearly met one of the disqualification grounds.”
According to Nitzan, due to “the rigorous tests that have been set” by the Supreme Court in past cases, “which require unambiguous concrete evidence,” the attorney general and the state prosecutor had rejected any request for disqualification of a party of individual candidates from running for the Knesset since 2002.
“Until this year, no application met the required level,” Nitzan told the conference.
“Even the most restrictive interpretation of the Basic Law that seeks to prioritize the right to vote and be elected cannot accept the amount and weight of clear and unmistakable evidence presented against candidates who have been disqualified for incitement to racism,” he said of Otzma Yehudit’s Ben-Ari, Gopstein and Marzel.
“Against each of them, dozens of documented clear racist statements from recent years were presented as part of the disqualification requests,” he said. “These were not mistakes. These were not things that were clumsily formulated or misinterpreted.”
The lack of a “critical mass of evidence” was, Nitzan claimed, the reason that both the state prosecution and the Supreme Court opposed blocking Otzma Yehudit’s current chairman, Itamar Ben Gvir, from running in April.
“Despite the close proximity to the ‘forbidden line’ that prevents running, there wasn’t the critical mass of evidence needed to overcome the important constitutional right — to vote and to be elected,” he said.
Regarding the decision to allow Balad to run in April and the Joint List to run in September, Nitzan said that the cases lacked a clear violation of the conditions set in law, the necessary mass of evidence, and, finally, the appropriate call for disqualification of party or candidate.
“The Balad slate in the [April] elections was part of a unification of two parties — and now [in the September election] is part of a four-party unification under the Joint List. The evidence presented was mainly focused on Balad members, but the request was to reject the entire slate. Since there is no way to disqualify parts of a slate, if the application was accepted, a complete list would be disqualified against which most of its members no claim had been made. It was therefore clear that, legally speaking, there was no reason to disqualify the entire slate,” Nitzan explained.
Crucially for the March 2020 elections, Nitzan went on to explain why, for example, Yazbak was not disqualified last time, but she could be going forward.
“In the [September] elections, significant allegations were made against MK Heba Yazbak. Indeed, as [Supreme Court Chief Justice] Ester Hayut has stated, some of the publications are very disturbing and may be interpreted as expressing sympathy with terrorists who took part in an armed struggle in Israel. Most of these publications, published four to six years ago, may have resulted in her disqualification… but no one asked for her disqualification! Her statements were made as part of a request to disqualify the entire Joint List and as mentioned above, the difficulty of disqualifying an entire slate for the statements or actions of one of its members is clear.”
It appears that MK Ofir Katz of Likud, who filed the petition against Yazbak, was listening.
“Systematically, for years, she has supported terrorists and spies who have committed horrific crimes against the State of Israel and its residents. There is no place in the Knesset for those who support a murderer of a 4-year-old girl with a rifle butt, spies for Hezbollah terrorists and terrorists who shoot at civilians,” he said in his petition.
Tuesday’s debate will not give Katz’s petition unequivocal approval. But, if he follows Nitzan’s guidelines, the Supreme Court just may.