Elections

Lieberman et al. v. Cassif et al.

Case/docket number: 
EDA 1806/19
Date Decided: 
Thursday, July 18, 2019
Decision Type: 
Appellate
Abstract: 

1.         On March 6, 2019, the Central Elections Committee for the 21st Knesset approved a request for the disqualification of Dr. Ofer Cassif from running as a candidate for the Knesset on the Hadash-Ta’al list but rejected a request to disqualify the Hadash-Ta’al list. The Committee further accepted two requests to disqualify the Ra’am-Balad list and rejected three requests to disqualify Dr. Michael Ben Ari and Advocate Itamar Ben Gvir from standing for election. The decision to disqualify Cassif was submitted to the Supreme Court for approval, as required under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Knesset Elections Law [Consolidated Version], 5729-1969. The decisions on the disqualification of party lists and the decisions to reject the requests for the disqualification of candidates were appealed to the Court in accordance with the Knesset Elections Law.

 

2.         On March 17, 2019, the Supreme Court (President E. Hayut, Justices N. Hendel, U. Vogelman, I. Amit, N. Sohlberg, M. Mazuz, A. Baron, G. Karra, D. Mintz) delivered its decisions on the Elections Decision Approval and the Elections Appeals. Due to the strict statutory timeframe imposed upon such decisions under secs. 63A(e) and 64(b) of the Knesset Elections Law, which require that the Court issue a judgment in appeal and approval proceedings “no later than the 23rd day prior to Election Day”, the Court issued its decisions without stating reasons. On Thursday, March 21, 2019, the Court released a summary of its reasons.

 

3.         In its summary, the Court ruled as follows:

 

EDA 1806/19:  

 

The Court majority (Justice D. Mintz dissenting) reversed the decision of the Elections Committee to bar the candidacy of Dr. Ofer Cassif.

 

The Committee’s decision to bar Cassif was based upon the grounds of negation of the existence of the State of Israel as a Jewish and democratic state, or support of armed struggle against the State of Israel. While the Court was severely critical of Dr. Cassif’s statements, particularly those implying a comparison to Nazi Germany, those statements did not, in the opinion of the majority, fall within the compass of support for armed struggle. The majority was also not convinced that Dr. Cassif’s statements in regard to the desirable character of the State of Israel met the necessary evidentiary standard for demonstrating the negation of the existence of the State of Israel as a Jewish and democratic state.

 

EA 1866/19:

 

The Court (Justice N. Sohlberg dissenting) granted the appeal against the Committee’s decision to approve the candidacy of Dr. Michael Ben Ari’s candidacy, and unanimously dismissed the appeal against the approval of the candidacy of Advocate Itamar Ben Gvir.

 

The Court found Dr. Ben Ari’s conduct and statements expressed incitement to racism as a dominant, central objective. The Court was of the opinion that the evidence convincingly demonstrated a “critical evidentiary mass” that comprised repeated, unambiguously inflammatory statements against the Israeli Arab populace over the course of years. The Court found that the evidence against Mr. Ben Gvir did not meet the stringent requirements for grounding a ban of his candidacy by reason of incitement to racism.

 

EA 1867/19:

 

The Court dismissed the appeal against the approval of the Hadash-Ta’al list in a unanimous decision, holding that the evidence presented did not meet the demanding standard for proving that the lists supported armed struggle against the state. It was further held that, in accordance with the Court’s case law, the desire that Israel be “a state of all its citizens” does not, of itself, demonstrate a negation of the State of Israel as a Jewish state to the extent that the list should be banned from standing for election.

 

EA 1876/19:

 

The Court (Justice D. Mintz dissenting) reversed the Committee’s decision to bar the Ra’am-Balad list from participating in the Knesset elections. In this regard, the Court gave some weight to the fact, pointed out by the Attorney General, that because a joint list was concerned, banning Balad could lead to the banning of the Ra’am list, although no objections were raised to its participation in the elections. Weight was also given to the fact that most of the statements and actions grounding the request to bar the list were made by members of the party who were no longer candidates, while the evidence against the current candidates did not rise to the level necessary for barring a list from participating in the elections.

 

4.         On July 18, 2019, the Court published its full judgment.

 

President E. Hayut, writing for the Court, held:

 

A.        The right to vote and be elected is the life breath of every democratic regime, and the conceptual foundation of this right is grounded in the fundamental principles of equality and freedom of political expression. Nevertheless, equality and freedom of political expression are not unrestricted rights. Therefore, along with the formal capacity conditions that must be met in order to realize the right to vote and be elected, there is a need for material restrictions intended to prevent participation in the elections by lists and candidates that seek to use the tools of democracy in order to deny the very existence of the state or infringe its fundamental principles.

 

Since 1985, the material constitutional restrictions upon the right to vote have been grounded in sec. 7A of Basic Law: The Knesset. This section, in its current form, establishes:

7A(a).  A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

 

            B.        Sec. 7A(a)(1) of Basic Law: The Knesset concerns preventing participation of lists or candidates in the elections if the purposes or actions of the list or the actions or expressions of the candidate constitute a negation of the existence of the State of Israel as a Jewish and democratic state. In accordance with the case law, the “nuclear” characteristics that define the State of Israel as a Jewish state include the right of every Jew to immigrate to the State of Israel, in which there will be a Jewish majority; Hebrew as the primary official language of the state; the symbols and holidays of the state primarily reflect Jewish tradition, and the Jewish heritage is a central element of the religious and cultural heritage of the state

 

As for the “nuclear” characteristics of the State of Israel as a democratic state, it was held that “these characteristics are based upon recognition of the sovereignty of the people, as expressed in free, equal elections; recognition of the core human rights, among them human dignity, respect and equality, maintaining the separation of powers, the rule of law and an independent judiciary”. It was further noted that a list that negates the right to vote for the Knesset on ethnic-national grounds, or a list seeks to change the regime by violent means will not be permitted to stand for election, as it essentially negates the democratic foundations of the Israeli regime

 

            C.        The criteria outlined in the Court’s case law in regard to the evidentiary threshold required for the disqualification are as follows:

(-)        First, in order to decide whether one of the elements set forth in sec. 7A is present in the objectives or actions of a list or a candidate, it must be shown that the objective is one of the dominant characteristics of the list’s or the candidate’s aspirations or activities, and that they seek to participate in the elections in order to advance them.

(-)        Second, it must be shown that these central, dominant purposes can be learned from express declarations and direct statements or reasonable conclusions of clear, unequivocal significance.

(-)        Third, it must be shown that the list or the candidate actively works for the realization of the said objectives, and that there was non-sporadic activity for their realization. Objectives of a theoretical nature are insufficient, and there must be a showing of systematic, repeated activity whose “intensity must be given severe, extreme expression”.

(-)        Fourth, the evidence grounding the actions or objectives sufficient to prevent standing for election to the Knesset must be “clear, unambiguous and persuasive”, and a “critical mass” of highly credible evidence is required to justify disqualification. The burden of proof rests upon the party arguing for disqualification of the list or candidate, and doubt arising as to the sufficiency of the evidence must weigh against the disqualification.

 

Justice I. Amit (concurring):

 

1.         Knesset elections are a purely political matter, and the Elections Committee reflects the relative political power in the Knesset. As opposed to this, sec. 7A of Basic Law: The Knesset was enacted to reflect timeless constitutional criteria of causes for qualification that are not judged on the basis of prevailing sentiment.

 

In putting those principles into practice, each disqualification is examined independently on its own merits, in accordance with the relevant cause for disqualification and the evidence referring to it, while not seeking any kind of political “symmetry” or “balance”.

 

2.         Incitement to racism is politically out of bounds. Incitement to racism is contrary to universalist democratic values. Incitement to racism is incompatible with the values of the State of Israel as a Jewish state. Racially inciting discourse is harmful by its very nature, and as such, it should not be subject to the probability test.

 

Justice U. Vogelman (concurring):

 

1.         Given the nature of the rights and balances involved, “political” considerations cannot be given weight in terms of the constitutionality of the decisions, and the political nature of the proceeding in the Central Elections Committee is not meant to influence the form of judicial examination and its scope.

 

2.         There is no place for a “probability test” inasmuch as racist expression is not worthy of protection. In the words of Justice D. Beinisch: “Racism is the kind of affliction whose isolation and removal from the political and social arena is an essential condition for preventing its spread”.

 

Justice M. Mazuz (concurring):

 

1.         The cause of “negation of the existence of the State of Israel as a Jewish and democratic state” under sec. 7A(a)(1) of Basic Law: The Knesset formerly comprised two separate causes: “Negation of the existence of the State of Israel as the state of the Jewish people”, and “negation of the democratic character of the state”. The two causes were unified in the framework of a 2002 amendment to Basic Law: The Knesset that added the authority to disqualify a candidate (not just a list) and the cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel. As explained in the Explanatory Notes, this unification derived from the desire for uniformity between the wording of sec. 7A and sec. 5 of the Parties Law, 5752-1992, and was not intended to introduce a change in the content of these causes by virtue of their unification.

 

            In practice, the unification of the causes was the basis for an interpretation of this cause that was both different in content and broader in scope. While under the prior wording, the cause of “negating the existence of the State of Israel as the state of the Jewish people” addressed the negation of the view that the State of Israel is the state of the Jewish people in the sense of the place in which it realizes its right to self-determination, under the unified wording, the term “Jewish state” was interpreted as referring to the internal content of the state’s identity and the elements of the Jewish identity of the state from within (“the primary symbols” of the state and the “nuclear characteristics” of its Jewish identity).

 

2.         The proper interpretation of the cause for disqualification of “negating the existence of the State of Israel”, like the separate cause under the prior wording, refers to the identity of the State of Israel as the state of the Jewish people in the national sense, as the place in which it realizes its right to self-determination, and not as referring to internal features of the state that characterize it as a Jewish state.

 

3.         There is no place for a probability test in applying the causes for disqualification under sec. 7A of Basic Law: The Knesset. The probability test has no grounding in the language of the law, and it raises many – theoretical and practical – difficulties in its application.

 

The theoretical basis for disqualifying lists or candidates does not suffice by preventing a real, concrete threat, but primarily concerns not granting legitimacy to lists of candidates whose objectives and actions are beyond the legitimate democratic boundaries for participating in the democratic elections. The offences of incitement to racism are conduct crimes, not result crimes, and do not comprise an element of probability. Incitement to racism is, therefore, prohibited and unacceptable without regard for the probability of the realization of its objectives. It is an illegitimate form of discourse in a democratic society. Incitement to racism does not represent any protected value that requires a balancing of interests.

 

Justice N. Sohlberg (concurring and dissenting):

 

            From the very outset, the Court adopted a strict approach to the interpretation of sec. 7 and to its application in practice. This approach reflects a value-based decision that democracy grants special – almost supreme – importance to the constitutional right to vote and be elected. Disqualifying a list or a candidate from standing for election to the Knesset must be the very last resort; one that is reserved for manifestly extreme case in which there is no room for doubt.

 

            There is no justification for ordering Ben Ari’s disqualification. Given the strict criteria applied in the case law of this Court over the years, and in view of Ben Ari’s explanations and clarifications, there is doubt as to whether the statements amount to incitement to racism or a negation of the democratic character of the State of Israel to the point that would justify barring Ben Ari from running in the Knesset elections. Indeed, the fundamental right to vote and to be elected is not absolute. In appropriate circumstances, it is proper to limit it, but that is not the situation in his regard. While the evidentiary foundation in the matter of Ben Ari is broad in scope, it is not more exceptional, extreme, and severe in “quality” and intensity than matters brought before this Court in similar cases.

 

            As opposed to the criminal process, which is conducted in accordance with a clearly defined framework of procedure, which includes, inter alia, an evidentiary proceeding in which it is possible to question and interrogate carefully, in the constitutional proceeding before this Court, the factual examination is far more limited. This requires the Court to be especially careful in drawing conclusions and establishing facts on the basis of the evidentiary foundation presented before it.

 

Justice A. Baron (concurring):

 

            Incitement to racism does not merit any protection, and therefore there is no place for applying a “probability test” as a condition for the application of the cause under sec. 7A(a)(2) of Basic Law: The Knesset.

 

Justice D. Mintz (concurring and dissenting):

 

The Explanatory Notes to the 2002 Basic Law: The Knesset Bill state that the amendment was not intended to change the case law of the Court “according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state”. However, I cannot concur with the position that the language of the amended provision is meaningless and that what has been is what will be. As has been said: “The legislative purpose, and certainly the legislative history, cannot give the law legal meaning that it cannot bear”. Indeed, there is nothing in Amendment no. 46 that would violate the principle that the provisions of sec. 7A of the Basic Law be interpreted narrowly. I also accept that the words of a candidate or the Knesset, as well as his deeds, be examined meticulously, inasmuch as disqualification remains an extreme act that should be employed only in exceptional circumstances, as has been held in the past.

 

Nevertheless, that does not mean that the amendment does not affect the causes for disqualification established under sec. 7A of the Basic Law as we knew them in the past. If, at the time, there was any doubt whether “expressions”, as distinct from “actions”, could be included under the provisions of sec. 7A of the Basic Law, then since the enactment of Amendment no. 46 of the Law, it has been expressly clarified. The legislature made itself unambiguously clear that the power of a word is as good as the power of an action. Second, although the line separating “expression” and “action” is not always clear, we cannot ignore that the interpretive principles outlined in the past in regard to the causes for the disqualification of a candidate placed emphasis on the candidate’s actions as against his expressions.  

 

            Just as incitement to racism generally disqualifies by means of verbal statements, so too, the other causes disqualify through expression. If not identical, the evidentiary level of all the causes for disqualification should be similar.

 

            Just as Ben Ari’s statements disqualify him from running for the Knesset – despite his claim that he “is not a racist”, so Cassif’s words should disqualify him – despite his general claim that he “opposes violence” of any kind. The result should be identical for both.

 

Justice G. Karra (concurring):

 

            I concur in the opinion of President E. Hayut and with the opinions of my colleagues U. Vogelman, I. Amit and E. Baron on the matter of the inapplicability of the probability test to the cause of disqualification for incitement to racism under sec, 7A(a)(2).

 

Justice N. Hendel (concurring):

 

1.         The probability test should not be applied to the causes under sec. 7A of Basic Law: The Knesset. The language does not support the application of such a test, and such is also the purposive interpretation. The basis of the causes for disqualification is not necessarily the prevention of a real, concrete threat to one of the protected values, but rather clearly expresses not granting legitimacy to lists or candidates who adopt the approaches set out in the causes.

 

2.         It would be incorrect to construe the term “Jewish state” as a test of the right of the Jewish people solely to national existence for three reasons. First, the term “Jewish” is not merely a geographical matter, but an historical one as well. The state’s symbols carry weight in the basic definition of the state. Second, the case law has also adopted this view in the past. Third, it would appear that practical experience shows that the objections in debates upon negation of the Jewish state focused upon the return to Zion, and not upon questions of general, historical, and religious symbols. Thus, the practical consequences of this distinction are unclear. In any case, it would seem that a construction that includes “internal” characteristics of the term “Jewish” would be more precise.

Full text of the opinion: 

                                                                                                                                    EDA 1806/19

                                                                                                                                  EA 1866/19

                                                                                                                                  EA 1867/19

                                                                                                                                  EA 1876/19

 

In re:                                      Central Elections Committee for the 21st Knesset

 

Plaintiffs in EDA 1806/19:               1.         MK Avigdor Lieberman

                                                            2.         MK Oded Forer

                                                            3.         Yisrael Beiteinu Faction

Appellants in EA 1866/19:               1.         Issawi Frej

                                                            2.         Ofer Kornfeld

                                                            3.         Atara Litvak

                                                            4.         Debbie Ben Ami

                                                            5.         Sonia Cohen

                                                            6.         Richard Peres

                                                            7.         Eran Yarak

                                                            8.         Gil Segal

                                                            9.         Shifrit Cohen Hayou Shavit

                                                            10.       Osama Saadi

                                                            11.       Wiam Shabita

                                                            12.       Yousouf Fadila

                                                            13.       Meretz Faction

                                                            14.       MK Stav Shaffir

15.       Reform Movement for Religion and State – Israel Movement for Progressive Judaism  

16.       Tag Meir Forum

Appellants in EA 1867/19:               1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Hoshaya Harari

                                                            4.         Yochai Revivo

                                                            5.         MK David Bitan

                                                            6.         Elidor Cohen

                                                            7.         Yaakov (Kobi) Matza

                                                            8.         Yigal Harari

                                                            9.         Yaakov Dekel

                                                            10.       Shimon Boker

                                                            11.       Yossi Shalom Haim Rozenboim

Appellant in EA 1876/19:                             Ra’am List

 

                                                                        v.

 

Respondents in EDA 1806/19:         1.         Dr. Ofer Cassif

                                                            2.         Attorney General

Respondents in EA 1866/19:            1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Central Elections Committee for the 21st Knesset

                                                            4.         Attorney General

Respondents in EA 1867/19:            1.         Hadash-Ta’al List

                                                            2.         Central Elections Committee for the 21st Knesset

                                                            3.         Attorney General

Respondents in EA 1876/19:            1.         Central Elections Committee for the 21st Knesset

                                                            2.         Likud Faction et al.

                                                            3.         Dr. Michael Ben Ari et al.

                                                            4.         Attorney General

                                                            5.         The Knesset

 

EDA 1806/19: Approval procedure under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1866/19: Appeal under sec. 63A(d) and sec. 65(A1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1867/19: Appeal under sec. 64(a1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1876/19: Appeal under sec. 64(a) of the Knesset Elections Law [Consolidated Version], 5729-1969

 

The Supreme Court

Before: President E. Hayut, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice M. Mazuz, Justice A. Baron, Justice G. Karra, Justice D. Mintz

 

Supreme Court cases cited:

1.         EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. MK Ahmad Tibi, IsrSC 57 (4) 1 (2003)

 

2.         EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18th Knesset (Jan. 21, 2009)

3.         EDA 9255/12 Central Election Committee for the 19th Knesset v. MK Hanin Zoabi (Feb. 18, 2015)

4.         EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11th Knesset, IsrSC 39(2) 225 (1985) [https://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]

5.         EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12th Knesset, IsrSC 42(4), 177 (1988) [https://versa.cardozo.yu.edu/opinions/kach-v-central-election-committee-twelfth-knesset]

6.         EDA 1095/15 Central Election Committee for the 20th Knesset v. Hanin Zoabi, (Dec. 10, 2015)

7.         LCA 7504/95 Yassin v. Registrar of Parties, IsrSC 50(2) 45 (1996)

8.         EA 1/65 Yaakov Yeredor v. Chairman of the Central Elections Committee for the 6th Knesset, IsrSC 19(3) 365 (1964) [https://versa.cardozo.yu.edu/opinions/yeredor-v-chairman-central-elections-committee-sixth-knesset]

9.         EA 2/88 Ben Shalom v. Central Elections Committee for the 12th Knesset, IsrSC 43(4) 221 (1989)

10.       EA 2805/92 Kach List v. Chairman of the Central Elections Committee for the 13th Knesset (unpublished)

11.       EA 2858/92 Movshovich v. Chairman of the Central Elections Committee for the 13th Knesset, IsrSC 46(3) 541 (1992)

12.       HCJ 5744/16 Ben Meir v. Knesset, (May 27, 2018)

13.       HCJ 11225/03 Azmi Bishara v. Attorney General, IsrSC 60(4) 287 (2006)

14.       HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General, (Dec. 9, 2015)

15.       HCJ 392/72 Berger v. District Planning and Building Council, Haifa District, IsrSC 27(2) 764 (1973)

16.       HCJ 547/98 Federman v. Government of Israel, IsrSC 53(5) 520 (1999)

17.       AAA 8342/02 Ben Gvir v. Commissioner of Police, IsrSC 57(1) 61 (2002)

18.       LCA 6709/98 Attorney General v. Moledet Gesher-Tzomet List for the Nazereth Illit Local Council Elections, IsrSC 53(1) 351

19.       HCJ 4552/18 Zahalka v. Speaker of the Knesset, (Dec. 30, 2018)

20.       EA 2600/99 Erlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

21.       HCJ 5364/94 Wilner v. Chair of the Israel Labor Party, IsrSC 49(1) 758 (1995)

22.       HCJ 14/86 Laor v. Theater and Film Review Board, IsrSC 41(1) 421 (1987)

23.       HCJ 399/85 MK Rabbi Meir Kahane v. Broadcasting Authority Directorate, IsrSC 41(3) 255 (1987)

24.       HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner, (Dec/ 28, 2016)

25.       HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, IsrSC 58 (6) 685 (2004)

26.       CA 4096/18 Chacham and Or-Zach Advocates v. Assessment Officer – Akko, (May 25, 2019)

27.       CrimA 7007/15 Shmil v. State of Israel, (Sept. 5, 2018)

28.       CA 8742/15 Astrolog Publishers Ltd., v. Ron, (Dec. 3, 2017)

29.       CrimA 961/16 Alharoush v. State of Israel, (Nov. 25, 2018)

30.       AAA 3326/18 A. v. Director of Firearm Licensing, Southern District – Ministry of Public Security, (Feb. 26, 2019)

31.       HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202 (2006) [https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]

32.       HCJ 7625/06 Martina Rogachova v. Ministry of Interior, (March 31, 2016) [https://versa.cardozo.yu.edu/opinions/rogachova-v-ministry-interior]

33.       EA 2600/99 Ehrlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

34.       CrimA 6833/14 Naffaa v. State of Israel, (Aug. 31, 2015)

35.       EDA 50/03 Central Elections Committee for the 16th Knesset v. Tibi, IsrSC 57(4) 1 (2003)

 

 

Judgment (Reasoning)

(July 18, 2019)

 

President E. Hayut:

Introduction

1.         On March 6, 2019, the Central Elections Committee for the 21st Knesset (hereinafter: the Elections Committee or the Committee) approved a request for the disqualification of Dr. Ofer Cassif (hereinafter: Cassif) from running as a candidate for the Knesset on the list of “Hadash – headed by Ayman Odeh, Ta’al – headed by Ahmed Tibi” (hereinafter: Hadash-Ta’al) but rejected a request to disqualify the Hadash-Ta’al list in its entirety. The Committee further accepted two requests to disqualify the Ra’am-Balad list (hereinafter: Ra’am-Balad) and to bar Advocate Itamar Ben Gvir from standing for election.

            These decisions were the focus of the appeal and approval proceedings before us.

            The three appeals – EA 1866/19, EA 1867/19 and EA 1876/19 – which will be presented below, were filed on March 12, 2019, in accordance with sec. 63A(d) of the Knesset Elections Law [Consolidated Version], 5729-1969 (hereinafter: the Elections Law) (in regard to the disqualification of a candidate) and secs. 64(a) and 64(a1) of that Law (in regard to the disqualification of lists). The approval proceeding – EDA 1806/19 – was filed on March 10, 2019 by the Elections Committee, in accordance with the provisions of sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset (hereinafter: Basic Law: The Knesset or the Basic Law).

2.         Sections 63A(e) and 64(b) of the Elections Law require that the Court issue a judgment in appeal and approval proceedings “no later than the 23rd day prior to Election Day”. In regard to the elections for the 21st Knesset, which took place on April 9, 2019, we were therefore required to render judgment in the appeal and approval proceedings no later than March 17, 2019. Under the time constraint from the time of the filing of the proceedings – March 10, 2019, and March 12, 2019 – to the date upon which we were required to render judgment – March 17, 2019 – we allowed the Respondents in each of the proceedings to file written pleadings, and we heard supplementary oral arguments before a nine-judge panel, as required by the Law.  The hearings took place on Wednesday, March 13, 2019, and Thursday, March 14, 2019, and the judgment was duly handed down on Sunday, March 17, 2019, without stating reasons in view of the statutory time constraints detailed above, and as has been usual in such proceedings over the years (see, for example: EDA 11280/02 Central Elections v. Tibi, [1]; EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18th Knesset [2]; EDA 9255/12 Central Election Committee v. Zoabi [3]). In the judgment, a majority of eight justices, against the dissenting opinion of Justice D. Mintz, decided not to approve the decision of the Elections Committee in the matter of the disqualification of Cassif. The Court unanimously decided to reject the appeal in regard to the Elections Committee’s decision not to disqualify the Hadash-Ta’al list. The Court also decided, by a majority of eight justices, against the dissenting opinion of Justice D. Mintz, to grant the appeal in regard to the Ra’am-Balad list, and to order that the list is not barred from participating in the Knesset elections. The Court further unanimously rejected the appeal in regard to the decision not to disqualify Ben Gvir, and decided by a majority, against the dissenting opinion of Justice N. Sohlberg, to grant the appeal in the matter of Ben Ari and order his disqualification as a candidate for the 21st Knesset. Four days later, on March 21, 2019, we published a summary of the reasoning grounding the judgment, and we now present the full reasoning.

 

General Background and Normative Framework

3.         The right to vote and be elected is the life breath of every democratic regime, and the conceptual foundation of this right is grounded in the fundamental principles of equality and freedom of political expression (EA 2/84 Neiman v Central Elections Committee [4], 262-264 (hereinafter: the first Neiman case); EA 1/88 Neiman v Central Elections Committee [5], 185 (hereinafter: the second Neiman case); EA 561/09 Balad v. Central Elections Committee [2], para. 2 (hereinafter: the Balad case); EDA 9255/12 Central Election Committee v. Zoabi [3], para. 7 (hereinafter: the first Zoabi case); EDA 1095/15 Central Elections Committee v. Zoabi [6], para. 5 (hereinafter: the second Zoabi case); cf. LCA 7504/95 Yassin v. Registrar of Parties [7], 58-60 & 71 (hereinafter: the Yassin case); Ruth Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, in A. Barak (ed.), Essays in Honor of Shimon Agranat, (1986), 145, 151-152 (in Hebrew) (hereinafter: Gavison)).

            Nevertheless, equality and freedom of political expression are not unrestricted rights, and it has already been held that “it is the right of a democracy to deny the participation in the democratic process of lists that reject democracy itself […] one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14 (hereinafter: the Tibi case); and further see the Yassin case, p. 62, the first Zoabi case, para. 8; the second Zoabi case, para. 6). Therefore, along with the formal capacity conditions that must be met in order to realize the right to vote and be elected, which concern, inter alia, age and citizenship (see: sec. 5 of Basic Law: The Knesset in regard to the right to vote, and secs. 6, 6A and 7 of that Law in regard to the right be elected), there is a need for material restrictions intended to prevent participation in the elections by lists and candidates that seek to use the tools of democracy in order to deny the very existence of the state or infringe its fundamental principles.

4.         As will be explained in the brief survey below, such material restrictions have been developed over the years in Israeli law, as well. At its inception, the State of Israel adopted a democratic regime characterized, inter alia, by the values of equality and freedom of political expression mentioned above. Alongside those values, and without any necessary contradiction, the sovereign State of Israel was established as a Jewish state, in recognition of the right of the Jewish people to national rebirth in its land. This important fundamental principle, which Justice M. Cheshin defined as an “axiom” when he served as chair of the Central Elections Committee for the 16th Knesset, must also be protected. President A. Barak addressed this in the Tibi case, stating:

There are many democratic states. Only one of them is a Jewish state. Indeed, the reason for the existence of the State of Israel is its being a Jewish state. This character is central to its existence, and it is – as Justice M. Cheshin stated before the Central Elections Committee – an “axiom” of the state. It should be seen as a “fundamental principle of our law and system” (emphasis original; ibid., p. 21).

President D. Beinisch addressed the uniqueness of Israeli democracy in this regard in the Balad case, noting:             

The State of Israel’s being the only state that serves as a home for the Jewish people, and therefore preserves unique characteristics worthy of protection, is the starting point for every discussion of the character of the state (ibid., para. 3).

In this regard, it would not be superfluous to note that there are those who hold the opinion that there is a “significant moral tension that requires a process of reconciliation between opposing values (Justice I. Englard in the Tibi case, p. 64. For a detailed discussion of this subject, see:  Adi Gal & Mordechai Kremnitzer, Disqualification of Party Lists and Candidates – Does it Strengthen Democracy or Weaken It? (Israel Democracy Institute, 2019) 22-26 (Hebrew)). As opposed to this, there are those who are of the opinion that there is no contradiction between democratic values and Jewish values, but rather they derive from one another (the second Neiman case, pp. 189-190; Justice Y. Amit in the second Zoabi case, para. 3; Elyakim Rubinstein, On the Equality of Arabs in Israel, 1 Kiryat Mishpat 17, 26 (20021) (Hebrew)). Below, we will address the material restrictions established in regard to the right to vote and be elected in Israeli law. As  will be seen, these restrictions define Israel as a Jewish and democratic state without distinction between these two frameworks, in the spirit of the principles we addressed above.

5.         Since 1985, the material constitutional restrictions upon the right to vote have been grounded in sec. 7A of Basic Law: The Knesset. This section, in its current form, establishes:

7A(a).  A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

6.         As already noted, these restrictions developed in Israeli law over the course of years. Basic Law: The Knesset, which was enacted in 1958, did not originally comprise a material provision – as opposed to a formal provision in regard to competence – that restricted the right to be elected. The absence of such a provision notwithstanding, in EA 1/65 Yeredor v. Chairman of the Central Elections Committee [8] (hereinafter: the Yeredor case), the Court recognized the authority of the Elections Committee not to approve the participation of the Socialists list in the elections for the 6th Knesset because the list, and the El Ard organization with which it identified, “deny the integrity of the State of Israel and its very existence”. Some twenty years later, the Court again addressed the disqualification of a list from standing for election. The Central Elections Committee for the elections for 11th Knesset in 1984 disqualified the Kach list and the Progressive List for Peace from standing for election. The Kach list was disqualified by the Committee for the racist and anti-democratic principles that it espoused, its open support for terrorism, and incitement of hatred and hostility between different sectors of the Israeli populace. The Progressive List for Peace was disqualified due to the Committee’s determination that the list comprised subversive foundations and tendencies and that central members of the list acted in a manner that identified with the state’s enemies. The disqualification of the two lists was brought before the Court in the first Neiman case, which held, by majority, that in the absence of an express provision of law, the doctrine established in the Yeredor case should be limited to the causes for disqualification set out there, i.e., denial of the very existence of the state – which must be proven by clear, unequivocal, and persuasive evidence (for a critique, see Gavison, at pp. 184-195).

7.         Following the judgment in the first Neiman case, the legislature amended Basic Law: The Knesset and added sec. 7A. This section, in its original form, comprised three causes for disqualifying a list of candidates whose purposes or actions expressly or impliedly amounted to (1) negation of the existence of the state as the state of the Jewish people; (2) negation of the democratic character of the state; (3) incitement to racism.

            When the Kach list again sought to stand for election for the 12th Knesset in 1988, the list was disqualified by the Elections Committee for the reasons set out in subsecs. (2) and (3) of sec. 7A. The appeal of the decision was denied by the Court (see: the second Neiman case), which held that the list indeed negated the democratic character of the state and that its activities constituted incitement to racism. In its decision, the Court emphasized that given the importance of the freedoms that the rights to vote and to be elected are intended to realize, affirming those rights is preferable to denying them, and the disqualification of a list must be reserved for the most extreme cases. That year, the Court also adjudicated another proceeding related to the elections for the 12th Knesset. The Court majority denied an appeal of a decision by the Central Elections Committee not to disqualify The Progressive List for Peace from standing for election (EA 2/88 Ben Shalom v. Central Elections Committee [9]). In 1992, after the murder of the founder of the Kach movement, Rabbi Meir Kahane (hereinafter: Rabbi Kahane), in 1990, the Central Elections Committee disqualified two lists that viewed themselves as the heirs to Rabbi Kahane from participating in the elections for the 13th Knesset. A unanimous Court denied the appeals of the disqualifications, adopting the criteria established in the second Neiman case (EA 2805/92 Kach List v. Chairman of the Central Elections Committee [10] (hereinafter: the Kach case)); EA 2858/92 Movshovich v. Chairman of the Central Elections Committee [11] (hereinafter: the Movshovich case)).       

8.         In 2002, sec. 7A of the Basic Law was amended. The amendment comprised three primary changes: (1) the separate causes for disqualification in regard to negating the existence of the State of Israel as a Jewish state and as a democratic state were unified as one cause; (2) an additional cause was added under which a list could be disqualified from participation in elections if it supported armed struggle by a hostile state or a terrorist organization against the State of Israel; (3) it was established that not only could an entire list be disqualified, but also a candidate could be disqualified from standing for election, but that as opposed to the disqualification of a list, the disqualification of a candidate required the approval of the Supreme Court.

9.         In the Tibi case, the Court addressed a number of decisions given by the Central Elections Committee for the 16th Knesset in regard to the elections in January 2003, among them the first decisions of their kind pursuant to the aforementioned amendment to sec. 7A of the Basic Law. The Elections Committee decided to disqualify Knesset members Ahmed Tibi of the Hadash-Ta’al list (hereinafter: Tibi) and Azmi Bishara of the Balad list (hereinafter: Bishara). The Committee further decided that Baruch Marzel of the Herut list (hereinafter: Marzel) should not be disqualified. In addition, the Committee decided to disqualify the Balad list from standing for election. In the Tibi case, the Court focused upon and outlined the criteria for each of the causes in sec. 7A of the Basic Law. On that basis, the Court decided not to approve the Election Committee’s decision to disqualify Knesset members Tibi and Bishara from standing for election. The decision in regard to Tibi was unanimous, whereas the decision in regard to Bishara was by a majority. A majority further dismissed the appeal of the Committee’s decision to permit Marzel’s candidacy, and the appeal against the disqualification of the Balad list was granted by a majority, and it was held that the list could stand for election.

10.       Another amendment to sec. 7A of the Basic Law was adopted in 2008, adding sec. (a1) that established: “In connection with this article, a candidate who was illegally present in an enemy state in the seven years that preceded the deadline for submitted lists of candidates shall be considered someone whose actions constitute support for an armed conflict against the State of Israel, unless he has proven otherwise”. About a year after that amendment, prior to the elections for the 18th Knesset, the Court addressed an appeal of the Elections Committee’s decision to disqualify the Balad and Ra’am-Ta’al list for the causes enumerated in secs. 7A(a) and (3) of the Basic Law. A majority of the Court granted the appeal, and            the participation of those lists was permitted. In 2012 and 2015, the Court was again called upon to address the disqualification of candidates. In the first Zoabi case, the Court unanimously overturned the Central Election Committee’s decision to disqualify Knesset member Hanin Zoabi (hereinafter: Zoabi) from running in the elections for the 19th Knesset for the causes enumerated in secs. 7A(a)(1) and (3) of the Basic Law. In the second Zoabi case, two approval proceedings were addressed jointly after the Central Elections Committee disqualified Zoabi’s participation in the elections for the 20th Knesset for the causes enumerated in sec. 7A(a)(1) and (3) of the Basic Law, and also disqualified Marzel from participating in those same elections for the causes enumerated in secs. 7A(a)(1) and (2). A majority of the Court decided not to approve the Elections Committee’s decisions in regard to both Zaobi and Marzel, and both stood as candidates in those elections.

11.       The judgment in the second Zoabi case was rendered in 2015. In 2017, section 7A of the Basic Law was amended again to add the words “including his expressions” after the words “the actions of the person”. It is important to emphasize that, as opposed to various arguments raised before us in these proceedings, this amendment – as stated in its Explanatory Notes – “was not intended to change the case law of the Court according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state”. In other words, the strict evidentiary threshold outlined in the case law over the years for proving the existence of the causes for disqualification remains as it was, given the purpose of the section and the balance between the values it is intended to protect.

            To complete the picture, we would note that in 2016, the Knesset approved an amendment to the Basic Law in regard to the termination of the tenure of a member of the Knesset for incitement to racism or support of armed struggle by an enemy state or of a terrorist organization against the State of Israel, as stated in secs. 7A(a)(2) or 7A(a)(3) of the Basic Law. We would further note for the sake of completing the picture that two petitions filed against the constitutionality of the said amendment were denied (HCJ 5744/16 Ben Meir v. Knesset [12]) (hereinafter: the Ben Meir case).

 

The Causes for Disqualification established in Section 7A

12.       Having surveyed the proceedings and legislative amendments relevant to the disqualification of lists and candidates seeking to stand for election to the Knesset and the development of the case law and the Basic Law in this regard, it would now be appropriate to address the interpretive principles and the criteria outlined and applied in all that regards the various causes for disqualification. I would preface by stating that the prevailing trend in this Court’s case law is that a cautious, restrained approach should be adopted in all that relates to the disqualification of lists and candidates participating in Knesset elections. Indeed, in view of the magnitude of the rights to vote and be elected, this Court has repeatedly held that the starting point is that the causes for disqualification should be interpreted narrowly and should be applied in the most extreme cases (see, for example, the second Neiman case, at p. 187; the Tibi case, at pp. 17-18). From this starting point, the case law derived the answer to the question of what must be proved in order to ground the presence of any of the causes for disqualification, as well as the criteria in regard to the required evidentiary threshold. We will first examine the case-law interpretation of what is required to prove each of the causes for disqualification, and then examine the criteria established in regard to the required evidentiary threshold.

(1) Negation of the existence of the State of Israel as a Jewish and democratic state

13.       The first cause established under sec. 7A(a)(1) of Basic Law: The Knesset concerns preventing participation of candidate lists or candidates in the elections if the purposes or actions of the list or the actions of the candidate, including his statements, constitute a negation of the existence of the State of Israel as a Jewish and democratic state. The “nuclear-minimal” characteristics of the State of Israel as a Jewish state and its “nuclear-minimal” characteristics as a democratic state were established in the Tibi case, which held that it is the infringement of these characteristics that may give rise to a cause for disqualification under sec. 7A(a)(1) of the Basic Law. In the matter of the “nuclear” characteristics that define the State of Israel as a Jewish state, it was held that these include the right of every Jew to immigrate to the State of Israel, in which there will be a Jewish majority; that Hebrew is the primary official language of the state; that the symbols and holidays of the state primarily reflect Jewish tradition, and that the Jewish heritage is a central element of the religious and cultural heritage of the state (the Tibi case, p. 22; and compare the view of Justice Y. Turkel in that case at p. 101; and see the second Zoabi case, para. 66, and the first Zoabi case, para. 20; the Balad case, para. 6; and compare the Yassin case, p. 66; the opinion of Justice S. Levin in the Ben Shalom case, p. 248; and see: Amnon Rubinstein & Raanan Har-Zahav, Basic Law: The Knesset, 64 (1993) (Hebrew)).

            As for the “nuclear” characteristics of the State of Israel as a democratic state, it was held that “these characteristics are based […] upon recognition of the sovereignty of the people, as expressed in free, equal elections; recognition of the core human rights, among them human dignity, respect and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (the Tibi case, p. 23; and see the second Zoabi case, para 29; and compare the Yassin case, p. 66). It was further noted in the Tibi case that a list that negates the right to vote for the Knesset on ethnic-national grounds, or a list seeks to change the regime by violent means will not be permitted to stand for election, as it essentially negates the democratic foundations of the Israeli regime (ibid., p. 24; and see the second Neiman case, p. 190, and the second Zoabi case, para. 30).

(2) Incitement to racism

14.       The second cause for disqualification, established in sec. 7A(a)(2), is incitement to racism. We will address the grounds of this cause and its underlying rationales, particularly in a Jewish state, at greater length below. At this stage, we would note that already in the second Neiman case, in which, for the first time following the enactment of sec. 7A of the Basic Law, the Kach list was disqualified on the grounds of incitement to racism, the Court held, per President M. Shamgar,  that the “objectives and conduct [of the list] are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation” (ibid., p. 197).

(3) Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

15.       The third cause for disqualification, established in sec. 7A(a)(3) of the Basic Law, concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel. This cause is premised upon the primary conceptual justification for the disqualification of candidates and lists – viz., defense against those who would seek to negate the very existence of the state or undermine the foundations of its existence and its democratic nature by means of armed struggle (the first Zoabi case, para. 29). In the Tibi case, President A. Barak noted in regard to this cause that: “Democracy is allowed to prevent the participation of candidate lists that employ violence or support violence as a tool for changing the nature of the regime” (ibid., p. 26; and also see the second Zoabi case, para. 69). Preventing participation by virtue of this cause will, of course, be possible where a candidate or a list personally takes active part in an armed struggle of a terrorist organization or an enemy state, as well as where they encourage such a struggle or provide material, political or other support (ibid., para. 69; and see the Tibi case, p. 27; the Balad case, para. 7; the first Zoabi case, para. 29). Disqualification of a list or candidate by virtue of this cause would be possible only if the support is of an armed struggle by an enemy state or a terrorist organization (the Tibi case, p. 27; and see the second Zoabi case, para. 69; for a detailed discussion of this cause, see: Gal & Kremnitzer, 16-19).

 

The Criteria in regard to the Required Evidentiary Threshold

16.       Alongside the narrow interpretation of the causes for disqualification established under sec. 7A of the Basic Law, over the years, the case law further added a series of strict criteria in regard to the required evidentiary threshold for the crystallizing of any of the causes. These criteria limit the possibility of disqualifying a list or candidate from standing for election to the Knesset only to clear, extreme cases due to the intense caution that the Court adopts as the starting point in this regard (the Balad case, para. 3; and see the opinion of Justice S. Levin in the Ben Shalom case, p. 248; the Kach case, p. 2). Below, we will summarize the criteria outlined in the case law in regard to the evidentiary threshold required for the existence of the disqualifying causes. These criteria were, for the most part, first applied in regard to the disqualification of lists, and after the amendment of the Basic Law in 2002, they were respectively adopted in regard to the disqualification of an individual candidate, as well (see the Tibi case, the first Zoabi case and the second Zoabi case). These are the criteria:

            (-)        First, in order to decide whether one of the elements set forth in sec. 7A is present in the objectives or actions of a list or a candidate, it must be shown that the objective is one of the dominant characteristics of the list’s or the candidate’s aspirations or activities, and that they seek to participate in the elections in order to advance them (see the second Neiman case, p. 187; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Second, it must be shown that these central, dominant purposes can be learned from express declarations and direct statements or reasonable conclusions of clear, unequivocal significance (the second Neiman case, p. 188; the Tibi case, p. 18, the Balad case, para. 4; the first Zoabi case, para 14).

            (-)        Third, it must be shown that the list or the candidate actively works for the realization of the said objectives, and that there was non-sporadic activity for their realization. It was held that objectives of a theoretical nature are insufficient, and that there must be a showing of systematic, repeated activity whose “intensity must be given severe, extreme expression” (the second Neiman case, p. 196; the Tibi case, p. 18; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Fourth, the evidence grounding the actions or objectives sufficient to prevent standing for election to the Knesset must be “clear, unambiguous and persuasive” (the second Neiman case, p. 188; the Tibi case, p. 18; the second Zoabi case, para. 34; compare: the first Neiman case, p. 250), and a “critical mass” of highly credible evidence is required to justify the disqualification (the Tibi case, p. 43; the first Zoabi case, para. 14). The burden of proof in this regard rests upon the party arguing for disqualification of the list or candidate, and a doubt arising as to the sufficiency of the evidence must weigh against the disqualification (the second Neiman case, pp. 248-249; the Kach case, p. 3).

17.       A complex question concerning the evidentiary threshold for proving the causes for disqualification under sec. 7A of the Basic Law is that of whether to apply probability tests for the realization of the dangers that the causes for disqualification are intended to prevent. There is a difference of opinion in the case law, and the matter has been left for further consideration and has yet to be decided. The spectrum of opinions expressed on this matter range from an approach that rejects the application of the probability test (see the position of Justice M. Elon in the first Neiman case, p. 297; President M. Shamgar following the enactment of sec. 7A of Basic Law: The Knesset in the second Neiman case, p. 187; Justice S. Levin in the Ben Shalom case, p. 248; and Justices S. Levin. E. Mazza, and D. Dorner in the Tibi case, pp. 81, 96-97, and 99), to the opposite approach that is of the view that this test should be applied to each and every one of the disqualification causes in sec. 1A of the Basic Law (Justice E. Rivlin in the Tibi case, p. 106, and see Barak Medina, Forty Years to the Yeredor  Decision: The Right to Political Participation, 22 Mekhkarei Mishpat 327, 376-381 (2006) (Hebrew)). As noted, the matter has been left for further consideration and has not yet been decided in the case law (see President A. Barak and Justices A. Procaccia and D. Beinisch in the Tibi case, pp. 21, 88, 90; President D. Beinisch in the Balad case; President A. Grunis in the first Zoabi case, para. 34; President M. Naor in the second Zoabi case, para. 36).

            A middle position between these two opposing views on the application of the probability test has also been expressed, according to which a distinction can be drawn between the causes under sec. 7A(a)(1) and (3) and the cause concerning incitement to racism under sec. 7A(a) (2). Thus, for example, in the Tibi case, Justice Procaccia noted that “condemnation of incitement to racism and its removal from the political election process are values unto themselves, independent and unqualified even when unaccompanied by any probability of the realization of the potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entry of inciters to racism into the political arena […] incitement to racism is condemned as a value of the universal and national heritage, and it stands beyond the test for the probability of its foreseeable danger under any particular criterion. The contradiction between racism and the fundamental values of the state is so extreme that anyone who holds it as part of one’s political doctrine should be disqualified out of hand” (ibid., p. 90; Gal & Kremnitzer, 62-63). Another opinion that distinguishes the cause related to incitement to racism and the other causes in regard to the probability test, and which proposes applying a very low-level probability test to it, was expressed by Justice D. Beinisch in that matter, in stating: “If I were of the opinion that we should adopt the approach that applies ‘probability tests’ for the disqualification of lists or candidates, then in all that regards racism, I would hold that ‘racism’ in its ‘nuclear’ sense comprises, by its very nature, a potential for danger whose probability is a real possibility. Racism, by its very nature, may spread like a disease even when it appears that the scope of the political activity surrounding it is small, and the political prospects of the list or candidate are not serious. Racism is a type of disease for which isolation and removal from the political and social arena are conditions for preventing its spread” (p. 88). We will address this subject below, and examine whether there is, indeed, a place for a different approach to the cause of incitement to racism as opposed to the other causes in relation to probability tests.

            Another question that derives to some extent from the probability test and that concerns the necessary evidentiary threshold for proving the existence of the causes for disqualification is whether and to what extent there is a connection between the causes for disqualification and the criminal offenses intended to protect those values. In this regard, it would appear that the approach adopted in the case law holds that the Penal Law can assist in identifying the presence of the elements of causes for disqualification, while emphasizing that we are concerned with different methods for the prevention of the phenomena and that the tests applicable in each of the areas are not the same (see President M. Shamgar in the second Neiman case, p. 191; President A. Grunis in the first Zoabi case, para. 32; and see Gavison, p. 166; and cf. the Ben Meir case, para. 28; and HCJ 11225/03 Bishara v. Attorney General [13]).

 

An Elections Appeal and Approval of an Elections Committee Decision – What is the Difference?

18.       Basic Law: The Knesset distinguishes two types of decisions by the Central Elections Committee. The first is Elections Committee decisions to prevent or not prevent a candidate list from standing for election. Such decisions can be challenged in an appeal to the Supreme Court, under secs. 64(a) and 64(a1) of the Elections Law. The second is Election Committee decisions declaring that a particular candidate is barred from participating in the elections. Such a decision requires the approval of the Supreme Court, under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Elections Law, whereas an Elections Committee decision to deny a request to bar a candidate from standing for election is of the first type of decisions in the sense that it does not require approval but can be appealed to the Supreme Court, under sec. 63A(d) of the Elections Law.

            The procedure for approving an Elections Committee decision is not one of “regular” judicial review in the sense that decision is not consummated until approval is granted. In this, it differs from appeal proceedings in regard to Election Committee decisions, which come into force when given. The scope of the Court’s authority in an approval proceeding is not identical to that granted it in an appeal proceeding. It has been held in this regard that the Court must refrain from nullifying a decision under appeal even if it would have decided differently, as long as it is lawful and does not deviate from the margin of reasonableness. As opposed to this, in an approval proceeding, the Court is granted authority to examine whether it, itself, approves the disqualification of the candidate from standing for election (the Tibi case, pp. 28-31; the first Zoabi case, para 15; the second Zoabi case, paras. 12-13).  It is interesting to note that there are different approaches in the case law in regard to the scope of the Court’s intervention in the decisions of the Elections Committee due to the fact that it is primarily a political body that weighs political considerations. Thus, there are those who take the view that this fact justifies narrowing the scope of intervention in the Committee’s decisions (Justice E. Rivlin in the Tibi case, p. 109, and Justice S. Levin in the Ben Shalom case, p. 251). As opposed to this, there are those of the opinion that “this fact of the political composition of the Committee, with the exception of its chair, requires an examination of the merits of the Committee’s decision by the this Court in order to prevent political considerations from outweighing an objective legal examination” (Deputy President M. Elon in the Ben Shalom case, p. 279; for a similar view, see Justice D. Beinisch in the Tibi case, p. 86 and the Balad case, para. 16).

            This feature of the Central Elections Committee as a primarily political body that makes decisions influenced by political considerations, with no obligation to explain those decisions, indeed justifies examination and consideration by the legislature (see the comment of President Naor in the second Zoabi case, para. 78, and Gal & Kremnitzer, 61-62). At present, the Court is responsible for both types of proceedings brought before it in accordance with the provisions of Basic Law; The Knesset and the Elections Law, and the distinctions between them as presented above. In this regard, it would not be superfluous to further note what we held in this regard in another context – that of the Ben Meir case – in which it was argued that there is constitutional significance to the distinction between the two proceedings. In rejecting that argument, we held: “There is, indeed, a difference in the scope of authority granted to the Court in the framework of an elections appeal as opposed to an approval of a decision […] however, at the end of the day, this Court has the authority [even in an appeals proceeding – E.H.] to review the decision on the merits, and to oversee its lawfulness and reasonableness, including all that relates to the factual foundation” (ibid., para. 34).

19.       Having presented the general normative framework for the proceedings before us, I will now turn to an examination of each of the four proceedings and decide upon them.

EA 1866/19 Freij v. Ben Ari

20.       Three requests for the disqualification of Ben Ari and Ben Gvir were submitted to the Central Elections Committee. Two of the requests – that submitted by the Israel Religious Action Center - Israel Movement for Progressive Judaism and the Tag Meir Forum, and that submitted by MK Stav Shaffir – relied upon two causes for disqualification: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and incitement to racism under sec. 7A(a)(2) of the Basic Law. The third request – submitted by members of the Meretz faction – relied upon the single cause of incitement to racism. After considering those requests, the Elections Committee decided, as noted, to reject all three requests, and thus the appeal before us, which was filed jointly by all the parties requesting disqualification.

 

Arguments of the parties

21.       The Appellants argue that Ben Ari and Ben Gvir have consistently acted for years to realize the racist doctrine of Rabbi Meir Kahane and the Kach list, which was disqualified from running for election, and act in an extreme manner to humiliate Israeli Arabs, including by calling for their expulsion from the country. According to the Appellants, Ben Ari and Ben Gvir support a racist ideology that seeks to undermine the principles of equality and human dignity in regard to anyone who is not Jewish. It was argued that the judgments that addressed the Kach list clearly established that its ideology is racist and infringes the fundamental principles of the democratic regime. The Appellants are of the opinion that the primary characteristic of the conduct of Ben Ari and Ben Gvir is ongoing incitement to racism, and that this is also expressed in the platform of the Otzma Yehudit party, which opposes democratic values. It was argued that the declarations of the two were consistently and continuously translated into severe actions that were, in part, also carried out by other elements of the Otzma Yehudit party.

22.       Ben Ari and Ben Gvir relied upon the Election Committee’s decision and argued that the appeal should be denied. According to them, the evidence presented by the Appellants does not justify their disqualification. Their primary argument was that the platform and their public activity over the years apply to those who are “an enemy of Israel”, who are not loyal to the state, and does not apply generally to all “the Arabs” as such, and supports and encourages the emigration of anyone who is not loyal “and who is an enemy of the state”. According to them, the fact that this Court did not disqualify Marzel from participating in the elections shows that they, too, should not be disqualified.

23.       The Attorney General was of the opinion that Ben Ari should be barred from participating in the elections on the grounds of incitement to racism. He argues that the Appellants presented persuasive, clear, unequivocal, recent evidence, particularly since May 2018, in which Ben Ari is heard speaking in various films, some of which were uploaded to his Facebook page. According to the Attorney General, we are concerned with ongoing, consistent expressions over a significant period of time that are at the hard core of incitement to racism. It was argued that these statements show that Ben Ari refers to the Arab population in its entirety while calling for a violent denial of the rights of the Arab population of the State of Israel and for their systematic, targeted humiliation on the basis of their ethno-national identity.

            As for Ben Gvir, the Attorney General was of the opinion that despite the fact that the collection of evidence in his regard is very troubling, and that some of his statements come “dangerously close to the line that would bar a person from standing for election to the Knesset”, he should not be disqualified. According to the Attorney General, as opposed to the evidence presented against Ben Ari, the evidence in regard to Ben Gvir is insufficient to constitute the persuasive, clear, unequivocal evidentiary foundation required for disqualification. This, because most of the evidence is not from the recent past, and in view of Ben Gvir’s declarations and explanations in the current disqualification hearings.

24.       As stated in the judgment we issued without the reasoning on March 17, 2019, we decided by majority, against the dissenting view of Justice N. Sohlberg, to adopt the position of the Attorney General and grant the appeal in EA 1866/19 in all that regards Ben Ari, and to order his disqualification form standing as a candidate in the elections for the 21st Knesset, while we unanimously decided to deny the appeal in the matter of Ben Gvir.

 

Disqualification of a Candidate on the grounds of Incitement to Racism

25.       Racism is a well-known societal disease from which the human race has suffered since time immemorial. Racism shows its ugly face in hatred and incitement to hatred of the other, simply by reason of inborn traits or communal, religious, ethnic, or national affiliation. It strips people of their humanity on the basis of those affiliations and violates the basic right to human dignity and equality granted to all who are created in God’s image (HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General [14], para. 26 of the opinion of Justice S. Joubran) (hereinafter: the Torat Hamelech case)). The democratic State of Israel was established as the state of the Jewish people, which has experienced unparalleled racial persecution and suffering throughout the ages. Racism stands in absolute contradiction to the fundamental values upon which the state was established, and we, as Jews, have a special obligation to fight it uncompromisingly. Justice Z. Berenson addressed this in 1973 in HCJ 392/72 Berger v. District Planning and Building Council [15], 771, stating:

When we were exiled from our land and removed far from our country, we became victims of the nations amongst whom we lived, and in every generation, we tasted the bitterness of persecution, malice and discrimination only for being Jews “whose laws are different from those of any other people” [Esther 3:8]. With this bitter, miserable experience that seeped deep into our national and human consciousness, it might be expected that we would not walk in the corrupt path of the nations, and that with the renaissance of our independence in the State of Israel, we would be cautious and be wary of any hint of discrimination and unequal treatment against any law-abiding non-Jewish person [..] Hatred of foreigners is a double curse: it corrupts the image of God of the hater and inflicts evil upon the blameless hated. We must show humanity and tolerance to everyone created in God’s image (HCJ 392/72 Berger v. District Planning and Building Council, IsrSC 27(2) 764, 771 (1973); and see and compare: the Tibi case, p. 89; the opinion of Deputy President E. Rubinstein in the Torat Hamelech case, para. 38 and in the second Zoabi case (dissenting in regard to the result), para. 116).

26.       The Israeli legislature took up this mission following the elections for the 11th Knesset, which took place in 1984, and in the course of which, as noted, the disqualification of the Kach party was requested due to incitement to racism (the first Neiman case). Thus, Amendment no. 9 to Basic Law: The Knesset added sec. 7A, which sets out the causes permitting the disqualification of a list from standing for election, among them that of incitement to racism. The Explanatory Notes the bill explain in this regard that this cause is premised upon the recognition of the severity and danger of the phenomenon of racism” (Basic Law: The Knesset (Amendment no, 9) Bill), and in the plenary session for the second and third readings of the bill, the chair of the Constitution, Law and Justice Committee, MK Eliezer Kulas stated:

Democracy is the “credo” of the people and their way of life. One must be educated to democracy and democracy must be defended. In a democracy, there is no place for incitement to racism, no place for racism, no place for harming any person on the basis of race, religion, nationality, or sex. Racism and discrimination are contrary to the character of a democratic regime and the character of the Jewish people, which experienced what racism is on its own flesh (Transcript of the 118th session of the 11th Knesset, p. 3898 (July 31, 1985) (hereinafter: Transcript of Session 118 of the Knesset)).

            In regard to our special, historical duty as Jews to fight against racism, Prof. Gavison noted in her 1986 article (cited above):

The Israeli legislature added this cause for disqualification for various historical reasons. I view incitement to racism as a particular (severe) instance of value inconsistency. Incitement to racism is an extreme rejection of the obligation to the equal value of the person. On the basis of the lessons of history of the last century, in which Jews were innocent victims of such incitement, there is complete justification for designating incitement to racism as an express form of incompatibility with the fundamental values of the state (ibid., p. 161).

27.       In parallel to Amendment no. 9 of Basic Law: The Knesset, the Penal Law, 5737-1977 (hereinafter: the Penal Law) was also amended to add the offense of incitement to racism. “Racism” was defined in sec. 144A of the Law as “persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin”. Then Minister of Justice Moshe Nissim addressed the relationship between these two amendments in stating: “We must view both of these bills as of a piece, […] for the fundamental, proper, considered, and balanced treatment […] of phenomena with which the State of Israel cannot be reconciled” (Transcript of Session 118 of the Knesset, p. 3361), while it was noted in the Explanatory Notes of the amendment to the Penal Law that “the Hebrew heritage deems the dignity and value of the person, created in God’s image, and making peace among people as exalted values. […] Jewish heritage views the demeaning of human dignity as a serious offense” (Explanatory Notes to the Penal Law (Amendment no. 24) Bill, 5745-1985, p. 195).

            In the second Neiman case, President M. Shamgar addressed, inter alia, the definition of the term “racism” in the Penal Law and held that for the purpose of interpreting sec. 7A of the Law, there is no need to achieve a definitive definition of the term “incitement to racism”. President Shamgar also rejected the argument of counsel for the Kach list according to which “racism” refers only to biological distinctions, holding: “Different forms of persecution based on nationality are widely accepted today as a form of racism” (the second Neiman case, p. 192; for a discussion of the relationship between the offense of incitement to racism under sec. 144B of the Penal Law and sec. 7A, see: the first Zoabi case, para. 32; and compare Gavison, pp. 170-171).  Denunciation of incitement to racism, and the struggle against it in the legal field also found expression in other legislative acts (see, for example, sec. 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951; sec. 5 of the Political Parties Law, 5752-1992; sec. 42A of Basic Law: The Knesset; and sec. 39A(3) of the Municipal Authorities (Elections) Law, 5725-1965).

28.       Combatting incitement to racism and provisions banning political activity of various groups on that basis can also be found abroad. Thus, for example, the President of France is authorized to order the disbanding of political parties for various reasons, among them incitement to racism or other group discrimination. The President’s decision can be appealed to the French Supreme Administrative Court (Conseil d’Etat) (Gal & Kreminitzer, 43-45; Gregory H. Fox & George Nolte, Intolerant Democracies, 36 Harv. Int. L. J. 1, 27-29 (1995); European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, 16 (1999) (hereinafter: the Venice Commission Report)). Spanish law allows for declaring a political party unlawful if it systematically infringes fundamental freedoms and rights by encouraging or justifying the assault, exclusion or persecution of people on the basis of ideology, belief, faith, nationality, race, sex or sexual orientation (Knesset Research and Information Center, International Parallels to sec. 7A of Basic Law: The Knesset and their Possible Consequences for the Termination of the Tenure of Members of Parliament, pp. 8-9 (2006) (hereinafter: the RIC Report); Erik Bleich, The Freedom to be Racist?: How the United States and Europe Struggle to Preserve and Combat Racism, p. 103 (2011); Gur Bligh, Defending Democracy: A New Understanding of the Party-Banning Phenomenon, 46 VNTJL 1321, 1338 (2013); Venice Commission Report, p. 16). The Czech Republic’s Political Party Law of 1991 prohibits the registration of parties whose activities endanger the rights and freedoms of citizens, and in 2010, the Czech Workers’ Party was banned, inter alia, because of incitement to racism (Miroslav Mareš, Czech Militant Democracy in Action: Dissolution of the Workers’ Party and the Wider Context of this Act, 26(1) East European Politics & Societies 33, 43-44 (2010); Mapping “Militant Democracy”: Variation in Party Ban Practices in European Democracies (1945–2015), 13(2) Euconst. 221, 238-239 (2017) (hereinafter: Mapping Militant Democracy); RIC Report, p. 17; Venice Commission Report, p. 16). There are similar restrictions in Poland, Portugal, Belarus, Ukraine, Bulgaria, and Romania (Venice Commission Report, pp. 16-17; RIC Report, pp. 10-12). The Penal Code of the Netherlands allows for the disbanding of organizations that endanger public safety, and by virtue of this law, it was held that the Centre Party ’86 encouraged discriminatory propaganda against foreigners and was a danger to the public. It was, therefore, disbanded in 1998 (Defending Democracy, p. 1339; Paul Lucardie, Right-Wing Extremism in the Netherlands: Why it is Still a Marginal Phenomenon, presented at Symposium, Right-Wing Extremism in Europe, 4-5 (2000); Mapping Militant Democracy, p. 238; for a comprehensive survey of the existing arrangements in various countries in regard to the disqualification of political parties and candidates in general, see, e.g., the Tibi case, pp. 14-15; the first Zoabi case, paras. 10-11; Talia Einhorn, Proscription of Parties that have a Racist Platform under Art. 7A of the Basic Law: The Knesset (1993)).

29.       The ban upon organizations that incite to racism is also grounded in international human rights law, which includes provisions treating of the prohibition of organized racist propaganda activities. For example, sec. 4(b) of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by Israel in 1979) establishes, inter alia, that the signatory states “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination […]”. Based, in part, on that convention, in 2018, the European Parliament passed a resolution in regard to the growing violence by European political groups and parties with a neo-fascist, neo-Nazi, racist or xenophobic agenda, and called upon the EU member states to adopt a number of concrete measures for effectively combatting the activities of those groups (see: European Parliament Resolution of 25 October 2018 on the rise of neo-fascist violence in Europe (2018/2869(RSP)).

30.       In Israel, in 2016, the State Comptroller, Judge (emer.) Yosef Haim Shapira, published a report that examined the activities of the Ministry of Education to promote education for living in common and for preventing racism, and found that not enough had been done in this area over the last years, given the differences among sections of the Israeli population that lead to discord and strife. The report further noted that “in this complex reality, we have experienced serious phenomena of hatred, racism, violence, divisiveness, sectarianism, and intolerance over the last few years” and “racist and violent statements, discrimination, persecution and even shocking hate crimes have become not so infrequent occurrences […] while the social networks serve as a fertile ground for disseminating hatred of the other” (State Comptroller, Education to Common Life and for the Prevention of Racism – Special Comptroller’s Report, p. 8 (2016)).

31.       Indeed, the fundamental values of the State of Israel as a Jewish and democratic state instruct us to act decisively and uncompromisingly to eradicate racism in our midst. This message also sheds light on the danger that must be determined in this regard for the purpose of the probability test, if it be found that it should be applied to the causes for disqualification under sec. 7A of the Basic Law. In my view, the inherent danger of racist discourse derives from the fact that such discourse feeds and sets the stage for actions intended to realize the racist ideology, which in turn motivate and reinforce continued racist discourse. As Justice D. Beinisch stated in the Tibi case: “‘Racism’ in its ‘nuclear’ sense, comprises, by its very nature, a potential for danger whose probability is a real possibility” (ibid., p. 88). Indeed, racist discourse, particularly if it is systematic, significant, and prolonged, causes this societal disease to infiltrate, take root and spread. Therefore, it is necessary to send a clear, unambiguous message that inciteful racist discourse is illegitimate, particularly when expressed by a candidate for public office who shouts it from the rooftops. Such discourse must be left “outside the camp” in every civilized state, and all the more so in the Jewish state.

32.       The French-Jewish author and intellectual Albert Memmi, who was born in the Tunis ghetto in 1920, writes in the introduction to the Hebrew edition of his book Racism:

The Jewish people is always a minority, and therefore, like most of the world’s minorities, historically and socially exposed, and is therefore a very convenient target. (This is, incidentally, one of the justifications for Zionism: The need for Jews to cease to be a minority, at least in one place).

Perhaps today, things have already begun to change somewhat. The declarations of some statesmen and religious leaders […] have aroused the political conscience of the nations. All of these may cause us to believe that the hell that was the lot of the Jews in almost every place in the world will come to an end […] thanks to the existence of the State of Israel. However, we should not yet rejoice. Already at the end of the last World War, it was claimed that the horrors of the war made people allergic to racism; racist philosophies would completely perish. But our hope was too rash. Nowadays, there are people who once again dare to be racist, and yet again we see the writings on the wall that call for the expulsion of the Jews, whose citizenship again is put in question, and the stage is once more set for their humiliation. We must tirelessly return to the struggle and not stop, perhaps forever (Albert Memmi, Racism, 8 (1988) (hereinafter: Memmi).

            If, as Memmi states, we Jews are obligated to spearhead the ongoing, uncompromising struggle against racism – of which antisemitism is one of the oldest and most severe examples – we must be worthy of leading that fight, and we must expunge the dangerous disease of racism from our midst in the sovereign State of Israel.  This is a long fight that requires perseverance, and as Memmi warns: “We are all fertile ground for absorbing and germinating the seeds of racism if we let down our guard even for a moment” (ibid., p. 41).

            And now from the general to the specific.

 

The background for addressing the matters of Ben Ari and Ben Gvir

33.       The main claim against Ben Ari and Ben Gvir is, as noted, that they view themselves as the successors of Rabbi Meir Khane and of the ideology of the Kach list that he headed. As may be recalled, that list was disqualified from standing for election to the Knesset (see the second Neiman case), and other lists that presented themselves as its successors have also been barred from running for the Knesset in the past (see: the Kach case; the Movshovich case). It should also be noted that already in 1984, prior to the constitutional grounding of the causes for disqualification in sec. 7A of the Basic Law, the Court noted in the first Neiman case that the Kach list “propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel”. It should also be noted that in 1994, the Israeli Government decided to declare the Kach movement, the Kahana Chai movement, and associates and derivatives of those movements, as terrorist organizations under the Prevention of Terror Ordinance, and proceedings instituted in that regard were dismissed (see: HCJ 547/98 Federman v. Government of Israel [16]; and see: AAA 8342/02 Ben Gvir v. Commissioner of Police [17]).

34.       The Tibi case examined, inter alia, the question of barring Marzel from standing for election on the Herut list after the Committee decided to reject a request for his disqualification. It was argued that he supported the ideology of the Kach movement, and the Court was willing to assume that the evidentiary foundation presented did, indeed, ground Marzel’s involvement in the activities of that movement prior to the elections. However, in dismissing the appeal, the Court majority saw fit to grant significant weight to the fact that Marzel had declared that he had changed his views, and in the words of the judgment: “Mr. Marzel himself declares that he has recanted his prior views, and that he now seeks to act only in accordance with the law. He accepts the principals of democracy. He disavows the path expressed in the broad statements of Kach. He does not support violent actions” (the Tibi case, p. 60). Against that background, the Court dismissed the appeal in the Tibi case in regard to the disqualification of Marzel, although it had reservations as to the sincerity of his declarations.

35.       Ben Ari served in the 18th Knesset as a member of the Ihud Leumi faction, and Ben Ari and Ben Gvir ran on the Otzma LeYisrael list in the elections for the 19th Knesset in 2013. A request to bar the list from the elections was denied by the Central Elections Committee, but the list did not meet the electoral threshold. In the list’s election campaign for the 19th Knesset, posters were used that displayed the word “loyalty” in Arabic, and beneath it the phrase: “There are no rights without obligations”. The campaign was barred by the chair of the Elections Committee Justice E. Rubinstein, who ruled that it bore a racist message that was intended to portray the Arab community as disloyal to Israel. Prior to the elections for the 20th Knesset in 2015, the list changed its name from to Otzma Yehudit, and ran as part of the Yahad list, led by MK Eli Yishai. Leading up to the elections, the question of Marzel’s participation in that list arose again, after the Elections Committee decided to disqualify him. In a majority decision, the Court ruled that the disqualification decision should not be approved. It was noted that while Marzel came very close to the point of disqualification from participation in the elections, nevertheless, the claims by those who requested his disqualification were largely based upon newspaper reports and information obtained from the internet of low probative value, which were met by Marzel’s denial. The Court noted that Marzel “explained a significant part of the evidence submitted in his regard, and special weight should be given to his declarations in this matter […] These explanations cast doubt upon incitement to racism being a primary objective of Marzel’s activity” (emphasis original; ibid., para. 34). Marzel, Ben Ari and Ben Gvir did not serve in the 20th Knesset, as the Yahad list did not pass the electoral threshold.

36.       Did the Appellants succeed in presenting evidence in the matter of Ben Ari and Ben Gvir that establishes a cause for disqualification against either of them from running as candidates for the 20th Knesset by reason of incitement to racism? Given our approach that particular care should be taken, and that ordering that a list or candidate be barred from participating in the elections should be reserved only for extreme cases, we found that the evidence presented in the matter of Ben Gvir is insufficient for establishing a cause for disqualification, as noted, even under sec. 7A(a)(1) as argued by the Appellants. As opposed to this, the majority of the Court was of the opinion that the evidence presented justifies the disqualification of Ben Ari on the grounds of incitement to racism under sec. 7A(a)(2) of Basic Law: The Knesset.

 

Ben Ari

37.       In his arguments, the Attorney General referred to a very long list of evidence, focusing upon evidence from the period since the beginning of 2017, and emphasizing statements and actions by Ben Ari over the course of the year preceding the elections. This evidence includes statements by Ben Ari, in his own voice, in various film clips, that, as the Attorney General argues, present an unambiguous, clear and persuasive picture of incitement to racism against the Arab population in its entirety. We are concerned with a very detailed evidentiary foundation that comprises some 40 items in regard to statements and actions by Ben Ari. After reviewing that evidence and examining Ben Ari’s affidavit and statements before the Elections Committee, as well as his response to the appeal, his oral arguments before us, and the supplementary pleadings that he submitted, we are of the opinion that the arguments presented on Ben Ari’s behalf do not provide an explanation that would remove his actions and statements from the scope of incitement to racism that raises a cause of disqualification under sec. 7A(A)(2) of the Basic Law.

38.       Below, we will address the main elements of the evidentiary foundation presented:

            In November 2017, Ben Ari spoke at the annual memorial ceremony for Rabbi Kahane, while wearing a sticker on his jacket lapel that read: “Rabbi Kahane was right”. In the course of his speech, Ben Ari was heard saying the following:

There are enemies, there is a Jew, there is a knife, so they slaughter. Because they are given an opportunity, they slaughter […] We’ll give them another hundred thousand dunams, and affirmative action, perhaps they will love us. In the end, yes, they love us, slaughtered […] Rabbi Kahane taught us – there is no coexistence with them. There is no coexistence with them! (emphasis added).

            Further on, Ben Ari was heard referring to Bedouin citizens, stating:

We of Otzma Yehudit came out with a plan called Immigration and Building, Emigration and Peace […] After immigration and building, we will fulfil what God said […] Cast out that slave-woman, because whoever wants money will get money, whoever wants a bus will get a bus […] We will say and initiate here what has to be done so that we will wake up in the morning to a Jewish state […] The Bedouins have to be dealt with, but in the countries of origin. Return the land of the Negev to the Jewish people (emphasis added).

            Another piece of evidence presented by the Appellants is a video that Ben Ari posted on the Facebook page “Otzma Yehudit with Michael Ben Ari” (hereinafter: the Facebook page) on May 20, 2018. In the film, Ben Ari is seen giving a speech and saying the following:

The Arabs in Haifa are in no way different from the Arabs in Gaza […] In what are they different? In that here they are enemies from within […] here they carry out a war against us within the state […] it’s called a “fifth column” […] this dog should be called by its name, they are our enemies, they want to destroy us, there are, of course, loyal Arabs, but they can be counted as something like a percent or less than a percent, to our great despair, the overwhelming majority are full partners with their brothers in Gaza […] The Arab enemy has to be told that it’s one or the other, either you are loyal to the state or you should go to Syria […] There is no coexistence with them, they want to destroy us, that is their objective, that is their goal […] This is the fifth column here (emphasis added).

            According to Ben Ari, this was said following demonstrations in Haifa in support of the residents of Gaza “against the background of the balloon terror in the south of the country”. An examination of the Facebook page on April 17, 2019, shows that the video garnered 21,000 views, hundreds of “likes”, and additional hundreds of comments and shares.

39.       In July 2018, Ben Ari posted another video on his Facebook page, in which he is heard saying the following:

Do you know that the Bedouin marry Arab women from Gaza, from Hebron, who all come here. They get national insurance, they give birth in hospitals at our expense, their children later get every benefit at our expense […] they even serve in the army! These enemies the Bedouin serve in the army, let me repeat what I am saying – the enemy Bedouin serve in the army! They are seduced by money. I know from firsthand sources, from those who serve with them – they don’t trust them for a minute. There is an agenda that if they serve in the army, they will be loyal to us. No, they are not loyal to us! (emphasis added).

            This video received some 4,800 views and many comments.

            About a month later, Ben Ari posted another video on the Facebook page “Otzma Yehudit with Michael Ben Ari”, in which he appears saying, among other things:

First, we have to change the equation that anyone who dares to speak against a Jew doesn’t live. He doesn’t live! We don’t expel him, don’t take away his citizenship. He doesn’t live! A firing squad kills him, he is done away with, the way Arabs understand. That’s their language [] Tell me racism, racist? Whoever says that they are loyal underestimates them. “What? An Arab just wants to eat, just wants to make a living” – that’s not true, […] An Arab has nationalistic ambitions, he screams them, he shouts about them, he is ready to die for them (emphasis added).

            Ben Ari explained that this was said “against the background of the conduct in regard to Gaza and the solution that should be implemented against it”. This clip also received 9,300 views and hundreds of “likes”, comments and shares.

            In another video from the same month, Ben Ari is heard saying, among other things:

Over the last hours, in Tel Aviv, in the center of Tel Aviv […] our staunchest enemy has been arriving, and that is the internal enemy, the internal enemy, the enemy that we want to ignore, the enemy we want to hide our heads in the sand and not see, the enemy of Israeli Arabs (emphasis added).

            Ben Ari explained that this was said against the background of a demonstration by Arabs and Jews against what is called the “Nation-State Law” (Basic Law: Israel – the Nation State of the Jewish People) (hereinafter: The Nation-State Law)) in which PLO flags were waved and in which there were calls for the liberation of Palestine. He further explained that he was referring to Arabs who are not loyal to the State of Israel and who want to eradicate its Jewish character.

40.       After about a month, on Sept. 16, 2018, immediately following the stabbing attack at the Gush Etzion junction in which the late Ari Fuld was murdered, Ben Ari uploaded another video clip to his Facebook page, in which he states, among other things, the following:

[…] They murder because they have work. They murder because they want to inherit this land […] If there are infiltrators, it is the Arab enemy […] You need Shlomo Neeman [head of the Gush Etzion regional council] to ask all the business owners to fire today the terrorist of tomorrow. It is your responsibility, stop employing the murderers! Don’t employ these murderers! They get money from us and also come to murder us […] They murder us whenever they have the chance. The conclusion is that there is no coexistence. Look at the Arabs! Do they coexist amongst themselves? Every day in the news, murder in Rahat, murder in Reineh, murder in Umm al Fahm, attempted murder in Lod, murder in Jaffa. First of all, when speaking of coexistence, Rabbi Kahane would always say, let’s see the Arabs coexist amongst themselves (emphasis added).

            The clip received some 7,300 views, and hundreds of “likes”, comments and shares.

            At the end of November 2018, Ben Ari referred to the Arabs of the city of Lod in another video, this time on his Twitter account, accompanied by the caption: “The Arab conqueror of Lod continues to rage even today: The State of Israel is being conquered from within, Israel needs Otzma Yehudit!” In another video clip published on his Facebook page shortly after, Ben Ari referred to the members of the Lod municipal council as the “Arab enemy”. At the end of December 2018, Ben Ari published a clip on his Facebook page titled “Now in Afula Illit, a meeting with Otzma Yehudit loyalists”. In the clip, Ben Ari is seen conversing with a group of residents and stating as follows:

They wanted to bring you a clan of enemies into your neighborhood […] The State of Israel is being conquered from within, they are determined to conquer us from within […] By means of the word equality, the enemy will destroy us […] What is happening here is happening in Dimona, is happening in Lod. Lod is already a completely conquered city. But Afula? This criminal who opened the center for the enemy in the name of equal rights […] If, with the help of God, we enter the coalition, the first thing that we will do is the complete revocation of this thing called affirmative action. Do you understand that you are second class citizens because you are not Arabs? […] Most of them are willing to give up everything as long as they slaughter us. And what I am saying is not racism because, to my regret, it is the reality (emphasis added).

            Further on in the clip, Ben Ari is heard referring to the murder of the late Sheli Dadon, which occurred in 2014, saying as follows:

Did anyone ever hold a discussion of their character? On their treasonous character? […] The moment you give here, you give him affirmative action, you give him more work, he will raise a family here. His children will also be here, his children, fewer of my children will be here, and so […] I need a work plan. I need a work plan now a work a plan. […] This is not racism, it is fact, Arabs are the most migrant people in the world, they aren’t tied to any land […] That’s why they came here. Because there is work. […] One of the first things, our first condition for any discussions about a coalition, with the help of God, that they will discuss with us, is – revoking affirmative action (emphasis added).

41.       Some two months prior to the elections for the 21st Knesset, on Feb. 8, 2019, shortly after the murder of the late Ori Ansbacher by a Palestinian terrorist, Ben Ari uploaded another video clip to his Facebook page in which he stated, among other things, the following:

There is a murderous people here, a murderous nation. We owe the revenge, and the revenge is Otzma Yehudit […] Only the revenge of Otzma Yehudit in the Knesset […] They want to destroy us, they are looking for our neck. […] They want to slaughter us […] The revenge will come when Otzma Yehudit will be in the Knesset with twenty mandates. When we will be there, they will see that we are not playing with them like Lieberman. They will find themselves in their countries of origin, and the village they came from will become an airport. To fly them to their countries of origin (emphasis added).

            An examination of the Facebook page shows that the clip received some 20,000 views. In another video clip that Ben Ari posted the same day, he is heard saying, among other things,: “They are looking for our neck, looking for our daughters […] anyone who talks to you about coexistence is inviting the next murder […] we have to send our enemies back to where they came from […] our enemies, these murderers, we will send them to murder in Syria, in Lebanon, in Iran in Turkey” (emphasis added). This clip, which was, as noted, published close to the elections, received some 32,000 views, and hundreds of “likes”, comments and shares.

42.       The evidence presented, the main part of which we described above, indeed paints a clear, unambiguous, persuasive picture in which Ben Ari systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public. We are concerned with significant evidence that comprises disparaging expressions of extreme severity that continued over a period of some two years until very close to the elections for the 21st Knesset, and Ben Ari is heard saying these things in his own voice. This fact is of high probative value (the second Zoabi case). Ben Ari attributes negative characteristics to practically all of the Israeli Arab public, and calls them “murderers”, a “fifth column”, “enemies”, and of “treasonous character”. We are not concerned with a “slip of the tongue” in a moment of anger, but rather with a continuous, consistent series of statements that express hatred and scorn for the Arab population in its entirety as one that appears to understand only violence, with which one cannot coexist, and which must, therefore, be expelled, and as one that receives various social benefits “at our expense”. As noted in the Appellants’ response to Ben Ari’s supplementary pleadings, these publications were not removed. Ben Ari surpassed himself in comparing the Israeli Arab citizens of Haifa to dogs, stating that “the dog should be called by its name”. The use of dehumanization and attributing animalistic traits to people is known to be one of the most degrading propaganda mechanisms employed by racist regimes in order to mark a population as “inferior” and “sub-human”, and it endangers and seriously harms the dignity of the individuals who are members of that group as human beings.

            Ben Ari’s statements, and the not insignificant exposure they receive on social media, reflect the racist political program he espouses and which he intends to realize as a member of the Knesset. Certain statements that expressly call for violence are of particular severity (see, in this regard, his statements in the video clip published in August 2018, according to which “anyone who dares to speak against a Jew doesn’t live. He doesn’t live […] A firing squad kills him, he is done away with, the way Arabs understand. That’s their language”). It is important to note that publications on the social media platforms that Ben Ari chose to use by uploading recordings in which he is heard speaking in his own voice have great influential potential, as the social networks provide candidates for the Knesset quick channels of communication  to many communities without any journalistic mediation. In this manner, the social networks have, to a significant extent, replaced the historic “town square”, and serve as a platform for exchanging views, disseminating ideas, and garnering support among broad, diverse communities. The great accessibility of social networks, as well as the quick and effective dissemination of opinions and ideas by means of the digital platforms, can serve as a very effective means for spreading racist ideas and expedite the dissemination of those ideas (see, in this regard, in general: Yotam Rosner, The Role of Social Media in the Radicalization of Young People in the West, National Security in a “Liquid” World, 131, 135-137 (Institute for National Security Studies, 2019) (Hebrew)).

43.       In addition to the specific explanations that Ben Ari gave for the above publications, he further explained that he is not a racist, and that what he said was directed only at that defined segment of the population that is “enemy”, which includes anyone who is not loyal to the state, and in his own words: “The definition of the enemy is not made on a purely ethno-national basis, but on a political one. Anyone who identifies with the political objectives of the Arab national movement identifies himself as an enemy”. According to him, he does not refer to the Arab public as a whole, and any Arab who is “loyal to Israel” has a right to be a citizen. As opposed to that, whoever “is not loyal to the State of Israel as the nation state of the Jewish people […] should find his place outside of the state”. Ben Ari further clarified that the distinguishing characteristic, according to his approach, is “the relationship to the Zionist enterprise and to the State of Israel as the state of the Jewish people”. He further argued that the quotes attributed to him were fragmented and tendentious and explained that in saying that the Arab population of Israel is not loyal, he meant that he has not met “many loyal Arabs” (emphasis added). In the hearing before us, Ben Ari’s attorney noted: “In my estimation, there is an absolute majority that is not loyal” (Transcript of the hearing, p. 22, line 14), and in this regard, Ben Ari clarified in his supplementary pleadings that his statement that there is an absolute identity between ethno-national origin and loyalty was made in opposition to a statement that he attributed to former minister Naftali Bennet according to which 99% of Israeli Arabs are loyal to the state.

            Ben Ari apologized for his statements in regard to Bedouin soldiers. He pointed out that he “apologizes for them before those loyal soldiers who may have been hurt” and explained that his intention was “unequivocally only to those sons of women who came from the areas of the Palestinian Authority and Gaza”, and that he does not think that “all of the Bedouin population is disloyal” (paras. 32-33 of his affidavit). In the hearing before us, Ben Ari even emphasized that “if it sounds as if I am against the Bedouin, God forbid. If there is loyalty, there is loyalty, and I respect and honor that (hearing transcript, p. 29, lines 16-17). Ben Ari asked to clarify that his statement of Sept. 16, 2018, following the murder of Ori Fuld, in which he called to “stop employing the murderers” as referring only to terrorists, the words do not, of course, refer to all Arabs […] [only] to the security measures that should be adopted in regard to employing Arabs from the Palestinian Authority”. In his response to the appeal, Ben Ari explained that his statements in the Afula meeting were made “against the background of the murder of a resident of my community Dadon”, and in his supplemental pleadings, Ben Ari added that even if what was said in that meeting “grate upon the ear, they do not rise to the level of a ‘critical mass’”. In his affidavit, Ben Ari emphasized that “I am not saying that all Arabs are like that [of a murderous, treasonous character], or that this character derives from ethno-national origins. But this murderous violence is characteristic of the national struggle of the Arab national movement since the beginning of the 20th century” (para. 47 of his affidavit). In the hearing before us, Ben Ari added another reason for his statements, noting that his words in regard to the sale of apartments to Arabs in Afula should not be understood as racial discrimination, and he referred in this regard to Amendment no. 8 of 2011 to the Cooperative Societies Ordinance in the matter of the considerations that may be taken into account by an admissions committee of a residential community (hereinafter: the Admissions Committee Law). Ben Ari explained what he said after the murder of Ori Ansbacher in a supplementary notice in which he explained that he “referred to the murder, and that was its only context”. In his affidavit, he added that his words might sound inclusive in regard to people on the basis of ethno-national origin, but that his intention was “to those who, from an Arab national position, seek to murder Jews against a nationalistic background, and as part of what they see as a national struggle, and who support and identify with those acts (para. 50 of the affidavit). In the hearing before us, Ben Ari’s attorney added that “there is never any justification for harming individuals on the basis of the nationality” (Transcript, p. 15, line 6), and that Ben Ari’s statements about the Arab public were always made in the context of a specific event” (ibid., line 12).

            Lastly, Ben Ari sought to emphasize that presenting broad positions is not exclusive to him but is rather a common practice of candidates for the Knesset, and even of serving members of the Knesset.

44.       I examined Ben Ari’s arguments and explanations and I do not see them as sufficient to change my conclusion. While Ben Ari repeatedly states that he is not a racist, unfortunately, his actions and statements, which I have summarized above, are diametrically opposed to that declaration. The question I pondered was what positive weight should be afforded to the fact that Ben Ari already served as a member of the Knesset (in 2009 - 2013). This fact does, indeed, constitute a consideration in his favor, but it is of limited weight inasmuch as Ben Ari worked toward the advancement of his racist ideology even in that period, and tearing the New Testament to shreds and throwing it in the waste basket in the Knesset was just one example of that (for other actions and expressions, see paras. 79-91 of the notice of appeal). In any case, as the Attorney General emphasized in presenting his position, the evidentiary foundation from the recent past, and primarily from the year preceding the elections, shows that a “critical mass” of evidence has amassed that unambiguously, clearly, and persuasively testifies to systematic incitement to racism by Ben Ari. The summary of the case law presented above shows that the Court has attributed significance and weight to explanations and clarifications presented by the candidate, to which the decisions in the matter of Marzel testify (the opinion of President A. Barak in the Tibi case, p. 60, and that of Justice I. Englard at p. 66; the second Zoabi case, para. 34, and as opposed to that, see the dissenting opinion of Deputy President E. Rubinstein at para. 103). However, in the instant case, the explanations provided by Ben Ari are not persuasive and pale before the enormity of the racist statements that he repeated again and again in his own voice, and which he preached in public at rallies in which he participated and on social networks. Other than an apology, that was only partial, in the matter of Bedouin soldiers, Ben Ari did not apologize for his statements and did not retract them. He tried to give his words a post facto interpretation, but that, as stated, was not persuasive because it is not consistent with the meaning and natural context of what was said. Thus, for example, Ben Ari tried to explain that he does not speak about the Israeli Arab public in general but only of those who are “enemies”, but the recordings repeatedly show that the reference is to the entire Arab public, or at the very least, to its overwhelming majority – 99% of that public – as disloyal to the state. Ben Ari himself notes in one of those recordings that he has not met Arabs who are loyal to the state (see, for example, the video clip of Ben Ari from Nov. 7, 2017, from 6:30). Another explanation proposed by Ben Ari in regard to some of his statements was that they were made immediately after terrorist incidents and attacks against Israelis. The pain, the anger, and even the will for revenge aroused at such times is understandable. However, it is important to bear in mind that fear and a sense of threat have always been the fuel that fires racist ideologies, and one must, therefore, take care not to harness understandably harsh feelings that arise at times of distress and pain and exploit them to advance such ideologies. The explanations that Ben Ari presented in an attempt to equate the Admissions Committee Law – with all the clear limitations it establishes – and the things he said in regard to the sale of apartments to Arabs in Afula have no place here inasmuch as the two cannot be compared (and compare: LCA 6709/98 Attorney General v. Moledet [18]) (hereinafter: the Moledet case)).

45.       In summation, this chapter states that the Court’s approach that the causes for disqualification under sec. 7A of Basic Law: The Knesset are to be narrowly construed and exercised in the most extreme cases, was and remains the starting point for every discussion of these causes. However, we are persuaded that the broad, up-to-date evidentiary foundation presented in the instant case gives rise to a cause that disqualifies Ben Ari from standing as a candidate in the elections for the 21st Knesset due to incitement to racism under sec. 7A(a)(2) of the Basic Law. Given this conclusion, there is no need to examine the additional cause for disqualification under sec. 7A(a)(1) of the Basic Law.

            Indeed, it is not always easy to draw the line separating racial incitement from the expression of an opinion – as severe and harsh as it may be – that is entitled to protection under the fundamental right to freedom of expression in general, and to freedom of political speech in particular. This is particularly the case when the former also concerns the right to vote and to be elected. Nevertheless, in the instant case, and given the evidentiary foundation we presented, it is absolutely clear that Ben Ari’s statements crossed the line, and thus the conclusion reached. It would be appropriate to conclude this chapter with another quote from Memmi’s book Racism:

One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask […] To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?) […] The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity (ibid., p. 116).

 

Ben Gvir

46.       In the matter of Ben Gvir, the Appellants presented a line of evidence, including evidence concerning criminal proceedings against him that, in part, concerned racist publications and support for the Kach movement that was declared a terrorist organization. However, the overwhelming majority of the evidence presented concerned acts and statements form many years ago, part from as long ago as the 1990s, and only a small part concerned the last few years. After examining the arguments raised by the Appellants and those of Ben Gvir, we concluded, as noted, that the evidence presented is not sufficient to ground a cause for disqualification from standing as a candidate in the elections for the 21st Knesset, given the rule that we addressed above in regard to the strict evidentiary threshold required to substantiate disqualification under sec. 7A of the Basic Law.

47.       The up-to-date evidence to which the Appellants and the Attorney General referred in regard to Ben Gvir should not be taken lightly. It includes statements he made in November 2017 at a memorial service for Rabbi Kahane, whose praises he also enumerated in an interview on Feb. 21, 2019. Ben Gvir made similar statements in a television interview in Nov. 2018 that he published on his Facebook page at that time. Those statements there were certainly very harsh and troubling, and there is substance to the Attorney General’s opinion that they come dangerously close to the line that would bar him from running in the Knesset elections. In this regard, it would not be superfluous to return to the words of Justice M. Elon in the second Neiman case, in 1989, in regard to the Kach list and Rabbi Kahane’s ideology:

The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism – its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image, and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society (ibid., p. 302).

            These trenchant remarks are applicable here, as well. However, Ben Gvir, who was admitted to the bar in 2012, took pains to emphasize and explain that while he is in favor of “fighting against the enemies and against any who seek to erase the state, harm its Jewish character, and destroy it (whether such actor is Jewish or whether Arab)”, he “opposes acting in any violent or unlawful manner” (para. 43 of Ben Gvir’s affidavit). He further noted that over the last years, he has changed his ways and he acts by legal means and initiates legal proceedings where he deems appropriate. These explanations bear weight and should be granted significance, and this, together with the current evidentiary foundation presented in his matter, which, as noted, does not rise to the level of a “critical mass” under the strict criteria established in this regard in the case law, led us to the conclusion that the appeal in the matter of Ben Gvir, on both heads, should be dismissed.

 

EA 1876/19 Ra’am-Balad List v. Central Elections Committee for the 21st Knesset

48.       The Ra’am-Balad list is composed of two parties – Ra’am and Balad – and two requests for its disqualification were filed by the Likud and MK David Biton, and by Ben Ari and Ben Gvir. The disqualification requests were based upon the cause in sec. 7A(a)(1) of the Basic Law – negation of the existence of the State of Israel as a Jewish state, and sec. 7A(a)(3) of the Basic Law – support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The requesting parties focused primarily on the activities of members of Balad, and it was argued that they oppose the Jewish people’s right to self-determination in the State of Israel and act to negate the core characteristics of Israel as a Jewish state. It was further argued that members of the list support the Hezbollah and Hamas terrorist organizations and violent acts against the police and IDF soldiers. The Elections Committee decided by a majority of 17 for and 10 against to disqualify the Ra’am-Balad list from participating in the elections for the 21st Knesset, and thus the current appeal.

 

Arguments of the Parties

49.       Ra’am-Balad argued that the Elections Committee’s decision should be annulled, and emphasized that most of the evidence presented in its regard was already adjudged and examined in prior proceedings against the Balad list or its members, including the evidence concerning their support for the idea of “a state of all its citizens”, and the Court held that the evidence did not substantiate a cause for disqualification. It was further argued that the Committee’s decision leads to a problematic result that also disqualifies the members of the Ra’am party on the list from standing for election even though no significant evidence was produced against them that would justify their disqualification. According to Ra’am-Balad, the Committee reached its decision without any material debate, and it ignored the decisions of this Court and the opinion of the Attorney General; the evidence against it does not relate to actions or activity that substantiate a cause for disqualification; and the evidentiary foundation rests upon articles form the internet of low probative weight and whose content was denied by the members of the list. Ra’am-Balad further argued that due to its political composition, the Elections Committee is not authorized to rule upon the causes for disqualification under sec. 7A of the Basic Law, and that the legal arrangement that grants it that authority is disproportionate and infringes the principle of equality of the elections as established in sec. 4 of the Basic Law, and the right to vote and to be elected.

50.       The Attorney General was of the opinion that the appeal of Ra’am-Balad should be granted and noted that the disqualification requests were indeed largely founded upon evidence from prior to the elections for the 20th Knesset, and part of it had already been examined in prior proceedings before this Court. Whereas, it is argued, the new evidence submitted relies largely upon articles form the internet that were denied by the members of the list and that are of low probative value. It was further emphasized that most of the evidence pertains to persons who are no longer on the list, among them: Basel Ghattas (hereinafter: Ghattas) and Said Naffaa, or who are in a unrealistic slot on the list, like Hanin Zoabi and Jamal Zahalka (hereinafter: Zahalka), and are not relevant to the members of the list and its new candidates who are in realistic slots. In all that relates to the cause of support for armed struggle of a terrorist organization, the Attorney General was of the opinion that significant weight should be accorded to the affidavits submitted by the representatives of the list which note that they reject violence and that they never called for its use. As for the cause of negation of the existence of the State of Israel as a Jewish state, the Attorney General noted that the consistent position of the case law of this Court in regard to Balad and its members is that there is no cause for disqualifying them from participating in the election for the claims have been raised once again in this proceeding. However, the Attorney General, without deciding the issue, explained that were the Balad party running independently for the 21st Knesset, there would be reason to carefully consider its disqualification in view of the Basic Law: A State of all its Citizens Bill submitted to the 20th Knesset by members of Knesset from the Balad party, and due to the content of that bill. But the Attorney General added that since the requests refer to the disqualification of the Ra’am-Balad list, and because the law does not allow for disqualifying half of a list, there is some difficulty in disqualifying the entire list due to the actions of members of the Balad list, who for the most part are not, as noted, candidates in realistic slots on the list, while no significant arguments were raised in regard to the Ra’am party and its members. On the constitutional level, in regard to the matter of the Elections Committee’s authority to address the causes for disqualification under sec. 7A of the Basic Law, the Attorney General argued, inter alia, that given the time constraints established in the Elections Law for deciding upon an appeal, the issues should not be taken up in the framework of the current proceedings.

51.       Respondents 2-3, who submitted the requests for disqualification, relied upon the decision of the Elections Committee and argued for dismissal of the appeal. In their view, the fact that the Ra’am-Balad list includes new candidates does not alter the fact that the ideology of the members of the Balad list negates the character of the State of Israel as a Jewish state and the fact that members of the party support terrorist groups like Hezbollah and Hamas. The Knesset, which was joined as a Respondent to the appeal due to the constitutional arguments, was of the opinion that these arguments should be dismissed. It emphasized that the claim of lack of authority was not raised before the Elections Committee, that it is being raised long after the said authority was bestowed upon the Committee by law, and like the Attorney General, the Knesset added that the elections proceedings are not appropriate for examining this issue.

 

Negation of the Existence of the State of Israel as a Jewish State

52.       The starting point for examining the evidentiary foundations presented by the Plaintiffs in regard to the disqualification of Ra’am-Balad on the cause of negation of the existence of the State of Israel as a Jewish state is grounded in the criteria established in the case law, which we surveyed at length above. These criteria were addressed and even applied in the past in regard to the Balad list and its platform (see the Tibi case and the Balad case), and those cases addressed, inter alia, the question whether a party that calls for the realization of the principle of “a state of all its citizens” is disqualified from standing for election to the Knesset. In the Tibi case, the Court answered in the negative, and held that calling for the realization of that principle does not necessarily imply the negation of the State of Israel as a Jewish state. The Court held that as long as that call is intended to guarantee equality among citizens, it should not be interpreted to be a call that negates the existence of the State of Israel as a Jewish state. As opposed to that, “if the purpose of Israel being a ‘state of all its citizens’ is intended to mean more than that, and it seeks to undermine the rationale for the creation of the state and its character as the State of Israel as the state of the Jewish people, then that undercuts the nuclear, minimal characteristics that characterize the State of Israel as a Jewish State” (the Tibi case, pp. 22-23, 41).

53.       In the Tibi case, the Court concluded that, despite the fact that Balad’s platform expressly called for realizing the principle of “a state of all its citizens”, and despite the additional evidence presented in open court and in camera, taken in its entirety, what was presented did not ground a “critical mass” of persuasive, clear and unambiguous evidence that would justify the disqualification of Balad for the cause argued, nor the disqualification of Bishara – then head of the list – whose disqualification was requested in that same proceeding. It would not be superfluous to note that most of the evidence presented in that matter in regard to Balad concerned actions and statements by Bishara. It was argued in regard to Bishara that, inter alia, in various events and party conferences he expressed himself in a manner that reflected a view according to which Jews do not have a right to self-determination. It was further argued that Bishara supported the approach that recognized the right of return of Arabs to Israel and a struggle against Zionism, and that he even tabled a bill for the abolition of the status of various Zionist institutions.

54.       After examining all of that evidence, the Court concluded in the Tibi case that even though Bishara’s objectives are a dominant objective of his activity and not merely a theoretical concept but rather an objective with political potential that he had put into practice, his actions did not negate the minimal, nuclear definition of the State of Israel as a Jewish state. It was held that the Court was not presented with persuasive, clear and unambiguous evidence against Bishara in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law, and consequently, not against the Balad list. That was so inasmuch as Bishara recognized the right of every Jew to immigrate to Israel and did not argue that the Law of Return, 5710-1950 (hereinafter: The Law of Return) should be revoked, did not deny the centrality of Hebrew as the language of the state, along with Arabic as an official language, and did not oppose Israel’s holidays and symbols, as long as the cultural and religious rights of the Arab minority are recognized.

55.       As noted, the Tibi case concerned the elections for the 16th Knesset, and some eight years later, in the Balad case, the Court addressed disqualification proceedings filed against the Balad party in anticipation of the elections for the 18th Knesset. That matter concerned the decisions of the Elections Committee to disqualify the Balad list, as well as the Ra’am-Ta’al list that also sought to contend in those elections. The causes for which the Elections Committee decided to disqualify the Balad list were, as in the present case, the causes under secs. 7A(a)(1) and (3) of the Basic Law. At that point, Bishara no longer headed the list. He had fled the country, and it was claimed that the reason was that a criminal investigation was being conducted against him for suspected involvement in security offenses (the Balad case, para. 9). Inter alia, the evidence presented in that matter to ground the cause of negation of the existence of the State of Israel as a Jewish state included Balad’s platform, which was published on its internet site, and an article by Zahalka, who was then the party leader, which described the party’s vision as striving for a State of Israel as “a state of all its citizens”. In addition, public statements of party members made in various situations, as well as articles from which, it was argued, one could discern an expression of support of the Balad members for its founder Bishara even after his flight from Israel, were presented. The Court granted Balad’s appeal and held that there was no cause for disqualification from contending in the elections for the 18th Knesset. The Court’s decision rested, inter alia, upon the opinion of the Attorney General at the time, who noted that the evidence presented against Balad, taken in its entirety, was inferior to the entirety of the evidence presented against that party in the Tibi case. The Court held:

After examining all of the evidence presented to us, and bearing in mind the criteria and principles outlined in the matter of Balad [the Tibi case], the entirety of the evidence presented to this Court in that matter and its concrete findings there in regard to them, we did not find that the disqualification requests that are the subject of this appeal in regard to Balad rest upon a sufficient evidentiary foundation to give rise to a cause for disqualifying the list from contending in the elections for the Israeli Knesset (ibid., para. 22).

            This conclusion reached by the Court in the Balad case concerns the two causes for disqualification advanced there. We will further address the additional cause under sec. 7A(a)(3) below.

56.       Another disqualification proceeding concerning the members of the Balad party was addressed in 2012 in the first Zoabi case, which examined the issue of the disqualification of Zoabi from standing for election for the 19th Knesset on the Balad list. In that proceeding, the Court examined the evidence regarding Zoabi’s support for the principle of “a state of all its citizens”, and was of the opinion that the evidence presented no materially new or different grounds from what had been presented in the Tibi case and the Balad case that would justify a different conclusion. The Court arrived at a similar result some three years later in the second Zoabi case. In that matter, the Court examined, inter alia, whether statements in which Zoabi was heard saying “there was no justification for the establishing of the State of Israel from the start. Now that there are generations of Jews who were born in it, I want to live with them but not in a Jewish and racist state”. The Court also examined an article that reported on a demonstration in which Zoabi participate, entitled “Demonstration against the Crimes of the Occupation”, and a recording in which Zoabi is heard shouting insults at the police. The Court held that there were no grounds for disqualifying Zoabi’s candidacy in the elections. That was so because the desire for the establishment of a state of all its citizens and “striving for an end to the occupation does not necessarily mean a negation of the Jewish foundations of the State of Israel.”

57.       The current proceeding, in which the Ra’am-Balad list is appealing its disqualification by the Elections Committee from contending in the elections for the 21st Knesset, is another link in the chain of similar proceedings on the same matter. In all that concerns the cause for disqualification under sec. 7A(a)(1) of the Basic Law, the evidence presented by the petitioners for disqualification includes various statement by members of Balad form the past and present, among them a quote from an interview conducted by Dr. Mtanes Shehadeh, chair of the Balad list, and number two on the Ra’am-Balad list (hereinafter: Shehadeh), in which he says, among other things, that Bishara was “an important activist in Balad’s leadership at the time, and contributed greatly to political discourse […] in Israel”, and is later quoted in that interview as saying that “the flag and national anthem do not represent us”. A report from the YNET website was also presented according to which MK Talab Abu Arar, who is a member of the list, and others met with the president of Turkey. Additional evidence presented concerns an interview with the former general secretary of Balad in which he called upon Israeli Arabs not to vote in the Knesset elections and to act for the realization of the principle of “a state of all its citizens”, as well as evidence concerning past activities of members of Balad, including statements by Zoabi from 2009 and past activities of Bishara.

            This evidence is not materially different from the evidence presented in the previous proceedings that we surveyed, which concerned proceedings for the disqualification of Balad and members of its list, as far as the cause of negation of the State of Israel as a Jewish state is concerned. Moreover, not only has most of the evidence presented in this proceeding been examined in previous proceedings and found insufficient in accordance with the criteria outlined for the said cause, but as noted, a not insignificant part of that evidence concerns persons who are no longer candidates on the Ra’am-Balad list for the elections for the 21st Knesset, or are not candidates in realistic slots on that list. That being the case, we cannot accept the argument that the Ra’am-Balad list should be disqualified from running in the elections for the 21st Knesset due to actions and statements attributed to Zoabi when she herself was not disqualified at the time in the first Zoabi case and the second Zoabi case for the same actions and statements, especially when she is located in the 118th slot on the current list. The argument in regard to ongoing connections of some kind or another between members of the list and Bishara was argued in a general manner and does not suffice for changing the conclusion as to the insufficiency of the evidence presented. As for the majority of the candidates on the Ra’am-Balad list for the 21st Knesset who hold realistic slots, with the exception of Shehadeh, no evidence at all was presented to ground the cause for disqualification, and as explained above, the evidence presented in regard to Shehadeh is based upon quotes from media interviews and reports on various internet websites whose probatory weight has already been held to be low (the second Zoabi case, para. 34), and Shehadeh has declared that his words were presented in a “distorted, misleading manner, and was accompanied by incorrect analysis” (para. 9 of the affidavit submitted by Shehadeh to the Elections Committee).

58.       The primary up-to-date evidence presented to us in this proceeding in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law is the Basic Law: A State of all its Citizens Bill, which members of Knesset from the Balad party sought to lay on the table in the 20th Knesset. At the end of the day, that bill was not presented due to a decision by the Knesset presidium of June 4, 2018 not to approve its introduction, based upon the opinion of the Knesset’s legal advisor. A petition filed in this regard was rendered moot and dismissed in limine when it was decided to dissolve the 20th Knesset (HCJ 4552/18 Zahalka v. Speaker of the Knesset [19]). The purpose clause of the bill established that it was intended to ground “the principle of the equal citizenship of every citizen, while recognizing the existence and the rights of the two national groups, Jewish and Arab, living within the borders of the state that are recognized by international law” in a Basic Law. The bill also redrafted the conditions for obtaining Israeli citizenship, such that obtaining citizenship by virtue of the principle of return would be annulled (see sec. 5 of the opinion of the Legal Advisor of the Knesset of June 3, 2018). In addition, new state symbols and a new anthem should be established in accordance with the principles set forth in the bill (on the significance of this provision as negating the principle according to which the “primary symbols” of the state should reflect the national rebirth of the Jewish people, see sec. 5 of the opinion of the Legal Advisor of the Knesset, and see what was stated in this regard in sec. 6 of the bill in regard to the status of the Hebrew language as the primary language of the state). If that were not enough, the petition filed by the members of Bald in the 20th Knesset against the decision of the presidium to prevent laying the bill on the Knesset table explicitly stated that the said bill accorded with Balad’s party platform.

            It would seem undeniable that the said bill, in all its parts, expresses a negation of the most minimal, nuclear characteristics of the State of Israel as a Jewish state as the Court explained in the Tibi case. The fact that the step taken by the members of Balad in this regard was democratic – tabling a bill – does not lead to a different conclusion. This was indeed a significant action by the members of Knesset representing Balad in the 20th Knesset attempting to realize – by means of a legislative bill – a political program and worldview that negates the existence of the State of Israel as a Jewish state. It would appear that Ra’am-Balad was aware of the significance of this evidence, but argued that it should not be given decisive weight in the current proceeding, inter alia, given the fact that it is only one piece of evidence (or at most two, if the petition constitutes a separate piece of evidence in this regard), and given the background for submitting the bill and that it was submitted in response to the legislative proceedings on the Nation State Law. These arguments attempt to minimize the significant weight of this evidence, and I agree with the position  of the Attorney General that had Balad run as an independent list comprising members of Knesset who had served in the 20th Knesset and who presented the bill, and who now sought to stand for re-election to the 21st Knesset, there would be grounds for seriously considering whether these two pieces of evidence show that Balad had crossed the divide delineated in the Tibi case that separates between espousing the principle of “a state of all its citizens” in order to achieve equality and seeking to negate the minimal, nuclear characteristics of the State of Israel as a Jewish state. If we were standing at that junction, we would also likely be required to consider the issue of the applicability of the probability test in applying the cause for disqualification under sec. 7A(a)(1) of the Basic Law, which was left for further consideration in the Tibi case and in the ensuing decisions. However, the list whose disqualification was requested is a joint list of Ra’am-Balad and we agree with the opinion of the Attorney General that his fact is significant for examining the causes for disqualification. In addition, it must be borne in mind in regard to the representatives of Balad on the list that none of those placed in realistic slots were among those who submitted the bill on Balad’s behalf. Moreover, in the affidavit he submitted to the Elections Committee, Shehadeh declared that he himself and all of Balad’s candidates for Knesset are committed to the principle of “a state of all its citizens” that is presented in the party’s platform as examined and approved in the Tibi case, the Balad case, and in the first and second Zoabi case (para. 2 of the affidavit). Given all of the above, and given the strict criteria outlined in the case law for the disqualification of a list from standing for election to the Knesset, we have concluded that there are no grounds for disqualifying the Ra’am-Balad list on the cause of negation of the existence of the State of Israel as a Jewish state.

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

59.       The Election Committee’s decision that “the Ra’am-Balad list is barred from participating in the elections for the 21st Knesset” does not state whether the list’s disqualification is based upon both of the two causes in secs. 1A(a)1 and (3) of the Basic Law or only upon one of them. In the future, even if the Committee does not state the reasons for its decision, it may be appropriate that it at least note what cause grounded its decision on disqualification. In any event, for the purposes of this appeal, I will assume, as did the parties, that the disqualification rested upon both causes.

            The prevailing rule established that in order to prove that a list or a candidate seeking to stand for election supports armed struggle by an enemy state or a terrorist group, it must be shown that it is the primary objective of the list and that it actually works toward realizing it. In all of the past proceedings in the matter of both Balad and Ra’am, it was held that the evidence presented in this regard does not amount to a “critical mass” that would justify disqualifying either of the lists or any of candidates on those lists on the basis of the cause grounded in sec. 7A(a)(3) of the Basic law (EA 2600/99 Erlich v. Chair of the Central Elections Committee [20] (hereinafter: the Erlich case); the Tibi case; the first Zoabi case; the second Zoabi case). Those holdings bear consequences for the matter before us inasmuch as the evidence presented to ground the cause of support for armed struggle is immeasurably less than that presented in the above cases. The Petitioners for disqualification primarily based their arguments upon pictures of Shehadeh visiting a former security prisoner and upon quotes from an interview in which it is alleged that he refused to refer to Hamas as a terrorist organization and added that “any struggle against the occupation is a legitimate struggle”, and that he “is for a struggle against the occupation. People have a right to fight against the occupation. If there are people who are oppressed, they have a right to fight”. In addition, an interview with MK Abd Al Hakeem Haj Yahya, who holds the second slot in the Ra’am party, was presented in which he referred to an attack on the Temple Mount in July 2017 in which Israeli police were murdered. According to the petitioners for disqualification, other statements by members of the list in 2009 and 2011 demonstrate a support for terrorism. The petitioners for disqualification further added the fact that former Knesset members of Balad met with the families of terrorists who were killed while carrying out terrorist attacks; Zoabi’s participation in the “Mavi Marmara” flotilla; the meeting held by former Balad Knesset members with Bishara in 2014; and the conviction of former Balad Knesset member Ghattas for security offenses.

60.       We reviewed the above evidence, and we are not of the opinion that it constitutes a body of persuasive, clear and unambiguous evidence that shows that support for an armed struggle by a terrorist organization is a central, dominant purpose of the Ra’am-Balad list or of any of the parties that compose it. In addition, we do not think that evidence was presented that meets the evidentiary threshold for proving that this list acts for the realization of such an armed struggle in a real and consistent manner. This is an a fortiori conclusion given that the evidence presented in the prior proceedings addressed by this Court was far more significant than that presented before us, and it was nevertheless held that it was insufficient to ground a cause for disqualification under sec. 7A(a)(3) of the Basic Law. Moreover, a significant part of the evidence presented to us refers to persons who do not appear on the Ra’am-Balad list for the 21st Knesset, and some of it was already examined in the previously noted cases. The petitioners for disqualification presented various statements by Shehadeh from which one might infer support for violent activity, but that is not the only possible interpretation and the doubt acts to the benefit of the conclusion that would permit the list to participate in the elections (the second Zoabi case, para. 73). In addition, weight should be given in this regard to the fact that Shehadeh made it explicitly clear in his affidavit that he does not support violent activity and that Balad’s approach is “democratic and employs legal means. We have never called for the use of violence, and none of the candidates on our current list have ever been convicted of any criminal offence”. It was further noted that statements expressing opposition to the Israeli policy in Judea and Samaria were examined by this Court in the past, and it was held that they do not, in and of themselves, give rise to a cause for disqualification (the second Zoabi case, para. 67).

61.       In conclusion, for the reasons stated above, I was of the opinion that we should grant the appeal in EA 1876/19, that the disqualification decision by the Elections Committee should be overturned, and we should order that the Ra’am-Balad list is not barred from participating in the elections for the 21st Knesset. I did not find reason to address the arguments raised by the Ra’am-Balad list in regard to the authority of the Elections Committee to rule upon the causes for disqualification. The conclusion that we reached in this appeal renders those arguments moot, but in my view, the fact that those arguments were never raised before the Elections Committee suffices to dismiss them in limine.

 

EDA 1806/19 Lieberman v. Cassif

62.       At the request of the Yisrael Beiteinu faction and Knesset members Avigdor Lieberman and Oded Forer, the Elections Committee decided to disqualify Cassif from participating in the elections for the 21st Knesset as a candidate on the Ra’am-Balad list. The Committee presented that decision for the Court’s approval in accordance with sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset.

 

Arguments of the Parties

63.       The request for Cassif’s disqualification rests upon two causes: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The evidence adduced in support of the request consisted primarily of four publications and newspaper articles – mostly from the internet – that show, according to those requesting disqualification, that in his statements, Cassif rejects the Jewish character of the State of Israel and calls for the changing of the state’s symbols and anthem, and for revoking the Law of Return. It is also argued that the evidence presented shows that Cassif supports the armed struggle of the Hamas terrorist organization against the state. This, inter alia, because he compared senior government leaders to Nazi war criminals, and because other statements testify, in their opinion, that Cassif believes that attacking soldiers does not constitute terrorism and that Israel should be fought because of its serious crimes against the Palestinian population.

64.       Cassif argued on his behalf that the evidence presented by those requesting the disqualification does not justify his disqualification from running in the Knesset elections. That is particularly so given that the request for disqualification is based, so he argues, upon distorted and tendentious quotes and relies primarily upon one interview with him in which he primarily presented academic ideas and not his political philosophy. As for the arguments that portray him as rejecting the Jewish character of the State of Israel, Cassif emphasized that he recognizes the right of the Jewish people to self-determination alongside an independent Palestinian state, while ensuring full equal rights to all residents of Israel. As for the arguments portraying him as supporting the armed struggle of Hamas against Israel, Cassif claimed that the various comparisons that he made between the State of Israel and Nazi Germany are not relevant to grounding a cause for disqualification, and that he opposes all forms of violence against any person. Similar to the arguments raised by the Ra’am-Balad list, Cassif also raised constitutional arguments in regard to the authority of the Elections Committee to examine and rule upon the disqualification of lists and candidates under the causes grounded in sec. 7A of the Basic Law, and I will already state that for the reasons mentioned in the previous chapter concerning the appeal of Ra’am-Balad, I have not found it necessary to address these arguments in the approval proceedings in regard to Cassif.

65.       The Attorney General was of the opinion that there is no cause for barring Cassif from running in the elections for the 21st Knesset because no “critical evidentiary mass” was presented that would justify it, noting that the evidentiary grounds adduced in support of disqualification was meager in both amount and quality.

 

Negation of the Existence of the State of Israel as a Jewish State

66.       The evidence in the matter of Cassif on this cause relies upon two newspaper publications. The first is an article on the internet site of Makor Rishon from Feb. 7, 2019, according to which Cassif stated in an interview some two years earlier on the subject of the evacuation of Israeli settlements in Judea and Samaria that he viewed this as a first step towards a Palestinian state, and that the State of Israel cannot be and must not be a Jewish state. Cassif expressly refutes these words attributed to him (para. 10 of the affidavit submitted by Cassif to the Elections Committee). As already noted, the probative weight that can be ascribed to such articles, and all the more so to “second hand” articles is low.

67.       The second and more significant piece of evidence presented by those requesting Cassif’s disqualification is an interview with Cassif in the Ha’aretz newspaper in February 2019. According to the petitioners for disqualification, certain statements by Cassif in that interview can be understood as a call for the negation of some of the core characteristics of the State of Israel as a Jewish state. Thus, for example, in response to the interviewer’s question about the character of the Israeli public space, Cassif said: “The public space has to change, to belong to all the residents of the state. I disagree with the concept of a Jewish public space”, adding that this would be expressed “for example, by changing the symbols, changing the anthem […]”. Cassif was also asked in that interview whether he supported the revocation of the Law of Return and answered “Yes. Absolutely”. As for the question of the Palestinian right of return to Israel, he replied: “There is no comparison. There is no symmetry here at all […]”. These worrying statements, which Cassif did not deny, certainly bear significant weight in examining the cause for disqualification in his regard under sec. 7A(a)(1) of the Basic Law. However, we are concerned with a newspaper interview and a single statement made in it, and I therefore agree with the Attorney General’s view that this piece of evidence alone is not sufficient to meet the strict criteria established by the case law for disqualifying a candidate from standing for election to the Knesset. Indeed, as presented in detail above, in order to ground a cause for disqualification, it is necessary to present statements that unambiguously, clearly and persuasively testify to the negation of the core characteristics of the State of Israel as a Jewish state. One must also show that this is the dominant purpose motivating the candidate’s activity and that he vigorously and consistently acts for its realization as part of a concrete political program. To this we should add that in his statements before the Elections Committee and before this Court, Cassif noted that he sees himself as obligated to the platform of the Hadash party, whose representatives have served in the Knesset for many years, and stated in the hearing before the Elections Committee: “The party of which I am a member and which I represent, […] made it its motto and has always said that we view the State of Israel as a state in which the Jewish people in the land is entitled to define itself. I do not deny that, I have never denied that, and I have no intention of denying that” (Transcript 10/21, p. 37).

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

68.       Has it been shown, as the petitioners for disqualification claim, that Cassif supports armed struggle by the Hamas terror organization against the State of Israel? A large part of the disqualification request in this regard rests upon statements attributed to Cassif that imply a comparison between the State of Israel and senior members of the government of Nazi Germany and Nazi war criminals. Thus, for example, in the article on the Makor Rishon website mentioned above, it was claimed that “Cassif called Lieberman ‘a descendant of Adolph’, and explained: ‘A conceptual descendent, not an actual one”, and called former Justice Minister Ayelet Shaked “neo-Nazi scum”. In another article on the website of Channel 20 from March 2016, a Facebook post by Cassif was quoted in which he wrote about the Israeli government, among other things, that “this is a fascist government par excellence, with real Nazi motives […] and at its head, above all others: an incompetent scoundrel who has destroyed every good thing there ever was here […] an outstanding student of Göring’s doctrine”. In another article published on the Channel 20 website in April 2018, there was a recording of Cassif from a class that he gave in which he is heard saying that “in the Israeli discourse created by the current government, it is legitimate to kill Arabs. This is how one slides into the abyss of what happened in Germany 80 years ago”.

69.       Those statements, which Cassif did not deny, are very harsh, and the evident comparison between the State of Israel and government ministers to Nazi Germany is outrageous and were better never said, and having been said, I reject them in the most severe terms. The weak explanations provided by Cassif, according to which the statements were only made as metaphors in order to arouse critical public debate and to warn against dangerous deterioration, do not blunt their severity. Cassif also took the trouble to explain that in his publicist writings he emphasized that “any comparison between the Nazi annihilation and Israeli policy in the territories would make a mockery of the Holocaust”, of which it may be said that he did not practice as he preached. However, we must admit that as outrageous and enraging as these statements may be, they do not ground a cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel, and they cannot, in and of themselves, lead to the disqualification of his candidacy in the elections (and compare: the Kach case, p. 3). In any case, Cassif made it clear that he does not intend to repeat such things as an elected representative (para. 13 of the affidavit submitted by Cassif to the Elections Committee), and it is to be hoped that he will act accordingly.

70.       The additional evidence presented in support of Cassif’s disqualification on the cause of support for the armed struggle of Hamas against Israel also does ground a cause for his disqualification. In this regard, the plaintiffs directed our attention, inter alia, to a post by Cassif that was mentioned earlier, which, they argue, shows that he supports a violent struggle against the fascism and racism that have, in his opinion, spread in Israeli society. They also referred to an article on the website of Channel 20, also mentioned above, that includes a recording of Cassif from 2018 in which he is heard saying that “Hamas is a political party”. Lastly, the plaintiffs refer to Cassif’s statements in the interview in Ha’aretz in which he stated:

Cassif: “Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable […] Wherever there was a struggle for liberation from oppression there are national heroes who, in 90% of the cases, did things that were, in part, terrible. Nelson Mandela, who is now regarded as a hero, a Nobel Peace Prize laureate, was a terrorist according to the accepted definition […]”.

Interviewer: “In other words, the Hamas commanders today, who initiate actions against soldiers will be heroes of the Palestinian state that will be established?”

Cassif: “Certainly”.

Cassif asked to explain what he said, and told the Elections Committee and the Court that he opposes the use of violence against any person. He did not deny his opposition to the Israeli policy in Judea and Samaria and said that in his vision for the future he sees an end of the military regime there and that his activity is intended, among other things, to change the situation of the Palestinian people in Gaza and in general. However, as already noted, expressing this opinion alone does not give rise to a cause for disqualification (see para. 56), and Cassif declared unambiguously that he does not support opposition by means of armed struggle, but rather political, non-violent opposition (compare: the Tibi case, p. 50; the second Zoabi case, para. 71), and in his words: “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence, this was also expressly stated in the interviews with me and in every other framework […] I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all” (Transcript 10/21, p. 34). Cassif also expressed a similar position in that interview in Ha’aretz that was presented by the plaintiffs, a part of which was quoted above, in stating: “We have always opposed harming innocent civilians. Always. In all of our demonstrations, one of our leading slogans was: In Gaza and Sderot, children want to live. With all of my criticism of the settlers, going into a house to slaughter children, as in the case of the Fogel family, is something that is intolerable. You have to be a human being and reject this”.

As for Cassif’s statement in regard to harming soldiers, we are concerned with a severe, enraging statement that could be interpreted as legitimizing the harming of IDF soldiers by the Hamas terror organization. While Cassif tried to create a distinction in this regard between his theoretical, academic views and his political views, in my view, it is an artificial and unpersuasive distinction that is hard to accept. Nevertheless, at the end of the day, the evidentiary foundation presented by the plaintiffs relies upon those aforementioned publications, and I agree with the position of the Attorney General that this evidentiary foundation is meager and insufficient to ground the cause for disqualification under sec. 7A(a)(3) of the Basic Law in accordance with the criteria set out in the case law, which I discussed above.

 

EA 1867/19 Ben Ari v. Hadash-Ta’al List

71.       The request to disqualify the Hadash-Ta’al list from standing for election to the 21st Knesset was filed by Ben Ari and Ben Gvir upon two causes: negation of the existence of the State of Israel as a Jewish state under sec. 7A(a)(1) of the Basic Law, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The Elections Committee decided by a majority of 15 for and 12 against to dismiss the request, and thus the present appeal.

 

Arguments of the Parties

72.       The appellants who seek the disqualification, and a few members of the Elections Committee who joined them as appellants, argued that the statements and actions of members of the list are intended to negate the character of the State of Israel as a Jewish state, and that its members support the Hezbollah and Hamas terror organizations while legitimizing harming Israeli citizens residing in the Judea and Samaria area and IDF soldiers.

73.       For its part, the Hadash-Ta’al list relied upon the decision of the Elections Committee and argued that the requesters of disqualification did not present an appropriate evidentiary foundation that could ground the claimed causes for disqualification. It was explained that the request was partly based upon old evidence that had been examined by the Elections Committee in previous elections, and that many of the statements attributed to members of the list were distorted and presented in a tendentious manner. It was further noted that most of the evidence was based upon reports taken from internet sites and newspaper clippings of low probative value, and that part are not even relevant to grounding the causes for disqualification.

74.       The Attorney General was of the opinion that the entirety of the evidence presented in regard to that request does not justify its acceptance inasmuch as it did not amount to the “critical evidentiary mass” required for disqualifying a list from participating in the elections for the Knesset. This is particularly so given that the evidentiary material presented in the matter of Hadash-Ta’al is significantly more limited than that presented in previous proceedings in which the said causes for disqualification were addressed. The Attorney General also added that the request was based largely on newspaper reports and parts of speeches that are of low probative value, and in particular, given the fact that we are not concerned with up-to-date evidence, and that part relates to the period preceding the elections for the 20th Knesset.

75.       The appellants based their argument in regard to the cause of disqualification concerning the negation of the existence of the State of Israel as a Jewish state on a few statements by members of the list that are insufficient– both quantitatively and qualitatively – for meeting the necessary evidentiary threshold to ground the argument that Hadash-Ta’al negates the core characteristics of the State of Israel as a Jewish state. The primary piece of evidence presented by the appellants in this regard was an interview with Knesset member Tibi in the Ha’aretz newspaper in March 2017, in which he was asked to provide a hypothetical description of the situation in which the vision of two states was abandoned and instead, a single state was established in which the Arab minority became the majority. In that interview, Tibi is quoted as saying that such a state would be substantially different from the State of Israel today, and that the Declaration of Independence would be replaced by a civil declaration in which equality would be a supreme value, the Law of Return would be revoked, and the state’s symbols would be changed. However, Tibi expressly stated in that interview that his vision is a vision of two states – a fact that the appellants refrained from mentioning in their arguments. The appellants further referred to a short segment of a television interview with Tibi in 2011 in which he said that he cannot recognize the State of Israel as a Jewish state. These two pieces of evidence, which are not from the recent past, are not sufficient to show clearly, persuasively and unambiguously that Tibi acts for the negation of the existence of the State of Israel as a Jewish state. It should be borne in mind that we are concerned with a member of Knesset who has served for some two decades, and that no argument was presented in regard to his parliamentary activity that would support the claimed cause for disqualification (compare the Ben Shalom case, p. 251). The additional evidence presented consists of quotes regarding which there is doubt as to whether they could ground the cause of negation of the existence of the State of Israel as a Jewish state, and in any case, they are attributed to Raja Zaatra, who is not a member of the Hadash-Ta’al list for the 21st Knesset and who claimed that the quotes were untrue. The appellants further referred to statements by Cassif, who is a member of the Hadash-Ta’al list, but as noted above, we did not find them sufficient to lead to disqualifying Cassif himself, and thus they cannot lead to the disqualification of the entire list (see and compare: the Tibi case, p. 44; the Balad case, para. 20).

76.       The evidence adduced by the appellants in all that regards the cause for disqualification concerning support for armed struggle by a hostile state or a terrorist organization against the State of Israel comprises, inter alia: a public address by Tibi in 2011 in Arabic in which, it is argued, he expressed praise for martyrs, and a report from 2007 on his participation in a march marking five years since Operation Defensive Shield in Jenin, among a crowd in which people dressed up as suicide bombers were present. In addition, the appellants referred to statements by a member of the Hadash party, Aida Touma Suleiman (hereinafter: Suleiman) in which she called the conduct of IDF forces in violent events on the Gaza border “premeditated murder”, refused to call the Hamas a terrorist organization, and argued that “an intifada by the people against the occupation is legitimate”. The appellants further referred to Suleiman’s participation in a demonstration in support of those who refuse to serve in the IDF, and to her refusal to hold a debate on women soldiers in the IDF when she served as chair of the Knesset committee for the advancement of the status of women. In addition, statements by a member of the Ta’al party, Osama Saadi, were presented expressing support for a popular struggle and who, it is claimed, refused to denounce harming Israeli citizens who reside in Judea and Samaria. The appellants also referred to statements by the chair of the Hadash faction, Ayman Odeh (hereinafter: Odeh), who refused to denounce harming IDF soldiers and thanked a Palestinian television station that praised the parliamentary activity of the Joint List in the 20th Knesset. The appellants further referred to a report that Odeh had clashed with police in a conference of the Popular Front and Democratic Front organizations, reports on meetings of members of the list with security prisoners in prison, reports of discussions held with Palestinian leaders, and to the Hadash party’s condemnation of the decision of the Persian Gulf states and the Arab League to declare the Hezbollah a terrorist organization.

77.       I examined the said assembled evidence and arrived at the conclusion that it is insufficient under the strict criteria outlined in the case law for establishing a cause for disqualification under sec. 7A(a)(3) of the Basic Law. As the Attorney General noted, part of the evidence presented in this matter does not show – even prima facie – direct or indirect support for terrorist activity. To that one should add that some of the evidence adduced is old and even precedes the elections for the 20th Knesset, and the Elections Committee to which that evidence was presented in the past did not find that it grounds the cause for disqualification. Indeed, some of the material attributed to the representatives of Hadash-Ta’al as detailed above can be interpreted as supporting an armed struggle against the State of Israel by a terrorist organization, but given the fact that in those very same publications to which the appellants refer there are also statements by members of the list according to which they do not support violence as a political approach, the resulting doubt weighs against that interpretation. Moreover, those requesting disqualification did not present the official platform of the list, which is a primary source depicting its purposes (the second Neiman case, p. 186; the Moledet case, p. 362), and for this reason, as well, it is difficult to conclude that the list supports armed struggle against the State of Israel by a terrorist organization and that this is the central, dominant purpose of Hadash-Ta’al for the realization of which it acts in a real and consistent manner.

 

Conclusion

78.       For the reasons detailed above, I have, as stated, arrived at the conclusion that the appeal in EA 1866/19 should be granted in part, and to hold that Ben Ari is banned from contending in the elections for the 21st Knesset, which does not apply to Ben Gvir; to overturn the Elections Committee’s decision in EA 1876/19 and hold that the Ra’am-Balad list is not barred from participating in those elections; to overturn the Elections Committee’s decision in EA 1806/19 and hold that Cassif may participate in the elections for the 21st Knesset; and to deny the appeal in EA 1867/19 and hold that the Hadash-Ta’al list is not barred from contending in the elections for the 21st Knesset.

 

Justice I. Amit:

            I concur in the decision of President E. Hayut, and I will add a few words of my own.

1.         Every election season, as a kind of ritual, the Supreme Court is called upon to address the disqualification of lists or candidates on the basis of the Knesset Elections Law [Consolidated Version], 5729-1969. Knesset elections are a purely political matter, and the Elections Committee reflects the relative political power in the Knesset like a mini-Knesset. As opposed to this, sec. 7A of Basic Law: The Knesset was originally enacted to reflect timeless constitutional criteria of causes for qualification that are not judged on the basis of prevailing sentiment. In view of the fundamental right to vote and to be elected, the Supreme Court established strict criteria for the disqualification of a list or a candidate, which were reviewed in para. 16 of the President’s opinion: dominant purpose; express declarations or unambiguous conclusions; non-sporadic conduct; and persuasive evidence.

            In putting those principles into practice, we examine each disqualification independently on its own merits, in accordance with the relevant cause for disqualification and the evidence referring to it, while not seeking any kind of political “symmetry” or “balance”. As I had the opportunity to say: “the voting in the Elections Committee is political, and thus the great caution that this Court must exercise as a party to the decision so as not to be infected by the political game” (EDA 1095/15 Central Election Committee for the 20th Knesset v. Hanin Zoabi [6], para. 1 of my opinion) (hereinafter: the second Zoabi case)).

            And now to the matter on the merits.

2.         Sec. 7A(a)(2) of Basic Law: The Knesset – “Incitement to Racism”:

            The legislature stated its opinion loudly and clearly. Incitement to racism is politically out of bounds. Incitement to racism is contrary to universalist democratic values. Incitement to racism is incompatible with the values of the State of Israel as a Jewish state. Incitement to racism – not in this house and not in the Knesset. For this reason, the Kach movement was denounced and expelled from the community and placed beyond the bounds of law. Racially inciting discourse is harmful by its very nature, and as such, I am of the opinion that it should not be subject to the probability test.

3.         In the “last round”, Baruch Marzel’s candidacy was confirmed, but in his dissent, Justice Rubinstein expressed his opinion that we were concerned with “the sheerest of sheer costumes” (the second Zoabi case, para. 118 of his opinion). As the President so aptly demonstrated, the candidate Ben Ari did not even bother to put on a disguise. According to him, the logic is as follows: Whoever is not a Zionist is an enemy, the overwhelming majority of Israeli Arabs are not Zionists, therefore the conclusion is that the overwhelming majority of Israeli Arabs are to be viewed as enemies. The Attorney General was rightly of the opinion that Ben Ari should be disqualified, and we agree.

4.         Sec. 7A(a)(1) of Basic Law: The Knesset – “Negation of the existence of the State of Israel as a Jewish and Democratic State”.

            In the second Zoabi case, I noted that “the Jewish public must be sensitive to the dilemma of the Arab minority, but similarly, elected Arab representatives must conduct themselves with wisdom and sensitivity in regard to the state of which they are citizens and understand the sensitivities of the majority”. In the fascinating hearing before us, it could be inferred from the statements of those requesting the disqualification of Ra’am-Balad that a party that is not Zionist should be deemed as one that entirely rejects the existence of the State of Israel as a Jewish state and must, therefore, be disqualified. In my opinion, this argument insensitively pigeonholes a considerable part of the Arab population that, while not Zionist, identifies with the State of Israel and sees itself as an integral part of it. It is hard to accept that the State of Israel would make an outcast of anyone who is not a Zionist, or anyone who ideologically rejects the Zionist idea. Disqualifying a list or a candidate for “incitement to racism” reinforces both characteristics of the State of Israel as “Jewish and democratic”. Disqualifying a list or a candidate for discourse and speech that is not Zionist in accordance with the approach of those seeking disqualification in the present case constitutes somewhat of a lessening of the democratic element. Therefore, and for the purposes of the cause for disqualification under sec. 7A(a)(1) of Basic Law: The Knesset, the two components of “Jewish and democratic” must be balanced wisely and sensitively so that accusers will not say that our state is “democratic” for the Jewish majority and “Jewish” for the Arab minority.

            And note: we sing [in the National Anthem – trans.] “the soul of a Jew still yearns” with misty eyes, and the Law of Return, 5710-1950 is, indeed, the “Foundation Stone” of the State of Israel and a Jewish state. The Law of Return is the alpha and omega for the very existence of the State of Israel, and it is what ensures the existence of a Jewish majority in the State of Israel. But not every passing thought, notion, or expression that casts doubt about the Law of Return will inherently lead to disqualification given the strict tests for disqualification noted above (such as dominance), and perhaps the probability test as well. However, a bill to rescind the Law of Return, or a party platform that openly calls for the rescission of the Law of Return might move a list across the boundary of disqualification, and it would seem that Balad, almost as a habit, not infrequently walks on the boundary. It would not be superfluous to note that in the Tibi case (Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 40), President Barak was ready to accept the statement of MK Bishara that he did not demand the revocation of the Law of Return. From this we can infer the result had it been otherwise claimed. This brings us to the central piece of evidence presented to us in regard to Balad, which is the Basic Law: A State of all its Citizens Bill that it presented to the Knesset, and which in effect, expresses a desire to undermine the Jewish character of the state.

5.         A number of reasons led me to the conclusion that the Balad list should not be disqualified for that bill, even without addressing the question of the probability test.

            First, most of the Balad Knesset members in the prior Knesset are not on the current list, which changes its character. Second, that bill should be seen as a sporadic act of protest following the enactment of Basic Law: Israel – The Nation State of the Jewish People. The bill is not included in Balad’s platform, it is not claimed that it was part of its platform in the past, and no systematic, consistent activity in that direction was proven. The bill should, therefore, be viewed as a one-time act that does not, in and of itself, give rise to a cause for disqualification.

6.         These are the main reasons why I am of the opinion that that the Balad party walked on the margin but did not cross it, even though the bill brought it but a step away. For my part, I will leave the grounds for the Attorney General’s opinion – that Balad did not stand alone but rather as part of a joint list of Ra’am-Balad – for further consideration. One could, on the other hand, argue that the very fact of that partnership with another party placed Balad under a higher duty of care lest crossing the boundaries might harm the other party. The other side of the coin is that the unification of parties does not grant immunity from disqualification, such that parties that may join with Balad in the future will have to take that into account. I will, therefore, leave the matter for further consideration.

 

Justice U. Vogelman:

1.         I concur in the conclusions and the comprehensive opinion of my colleague the President, and with the main points of her reasoning.

2.         The principles applicable to appeal and approval proceedings with which we are concerned are grounded in a broad range of case law, which is appropriately detailed in the opinion of my colleague the President.

3.         My colleague the President addresses the difference between an elections appeal and an elections approval, and on the various approaches in our case law in regard to the scope of the Court’s review in the different proceedings. My colleague Justice I. Amit, for his part, addresses the caution that the Court must adopt, in his view, in proceedings such as these due to the fact that the vote in the Elections Committee if political.

4.         I see no need to set in stone the proper approach among those enumerated by my colleagues (inasmuch as each of them leads to the same result in the instant case). However, I would like to emphasize that, in my view, given the nature of the rights and balances involved, the “political” considerations cannot be given weight in terms of the constitutionality of the decisions, and that the political nature of the proceeding in the Central Elections Committee is not meant to influence the form of judicial examination and its scope.

5.         On the matter of disqualification for incitement to racism.

            The first matter I wish to address in this regard concerns the application of probability tests for the realization of the dangers that the causes for disqualification are intended to prevent (a question that has not yet been resolved in our case law). In the context of the said cause, I would like to point out that, in my view, there is no place for a “probability test” inasmuch as racist expression is not worthy of protection. In the words of Justice D. Beinisch: “Racism is the kind of affliction whose isolation and removal from the political and social arena is an essential condition for preventing its spread” (EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 88) (hereinafter: the Tibi case)).

            The words of Justice Procaccia in the same matter are apt:

The phenomenon of racism in the chronicles of history and the annals of the Jewish people is special and unique. Nothing compares to its rejection and the defense against it even among the many protections of the fundamental human rights that the constitutions of western states diligently labor to ground. The moral, ethical taint of incitement to racism, against the background of its deep opposition to the universal concept of human rights, and in view of the atrocities of the Holocaust of European Jewry that was annihilated due to racial theory, does not tolerate its inclusion on the podium of ideas and opinions of political discourse. That is so, even if there is no foreseeable danger whatsoever of the realization of the inciter’s dogma, and even if his words are like “a voice crying out in the wilderness” without echo and without being heard.

Racism is condemned, and it must be eliminated by virtue of the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, of which Israel is a signatory. The parties to it pledged not to sponsor racial discrimination and to adopt immediate measures in order to uproot every phenomenon of racism (arts. 2, 4, and 5 of the Convention).

The condemnation of racism takes on a special dimension in Jewish tradition in view of the blood-soaked history of a nation that was a victim of the manifestations of this phenomenon over generations. Racism stands in contradiction to the fundamental values of the State of Israel as expressed in the Declaration of Independence, according to which full social and political equality must be ensured for all citizens regardless of religion, race, and sex. The depth and force of the condemnation of racism as a social phenomenon do not accord with granting of an opportunity to a candidate to run for office on the basis of racist ideas among the range of opinions and perspectives expressed in political discourse. Standing for election on the basis of racist ideas flies in the face of the educational, moral purpose of inculcating the principles of equality and tolerance in Israeli society. These ideas cross the bounds of the red line that guarantees tolerance even for expressing deviant ideas and views. Casting them out beyond the pale is necessary so that expressing them will not be interpreted, even by inference, as granting approval and legitimacy to those who hold them to participate in the life of the state (and compare: R. Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, p. 173).

                        […]

In this spirit, the condemnation of incitement to racism and its removal from the framework of political contest is a value unto itself, unconditional and unrestricted even where there is no attendant probability whatsoever of the realization of its potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entrance of inciters to racism into the political arena (compare the words of Justice E. Goldberg in the meeting of the Knesset Elections Committee in the matter of the disqualification of the Kach party, Oct. 5, 1988, p. 47ff.). Incitement to racism is condemned as a value of universal and national heritage, and it stands above and beyond the probability test of its foreseeable danger on the basis of some criterion or another. The contradiction between racism and the fundamental values of the stare is so deep that anyone who embraces it in his political thought should be disqualified from the outset (the Tibi case, pp. 89-90).

            I agree with every jot and tittle of these true words.

6.         Moving from the general to the specific – my colleague well described the factual grounds upon which we decided that the cause of incitement to racism is met in the case of Ben Ari, and it would be superfluous to reiterate the well-grounded presentation of the evidentiary foundations. Ben Ari’s incitement extends to a broad range of subjects, among them a call for excluding Arab citizens from residing within the limits of an Israeli city, recall dark periods in the history of nations. The addition of the cause for disqualification with which we are concerned to the Basic Law by the constituent authority of the State of Israel was intended for a war against such phenomena, and it is our role to interpret the Constitution and maintain its boundaries.

7.         The matter of Ben Gvir is different. I concur with my colleague’s conclusion – which ascribed weight to his declarations concerning changing his manner – that the foundation amassed in his regard does not amount to a “critical mass” that grounds a cause for disqualification.

8.         As for the Ra’am-Balad list – as my colleague notes, the entirety of the evidence adduced is not qualitatively different from what was presented to this Court in previous proceedings that concerned the question of the disqualification of Balad and members of the list in which it was held that it did not constitute a sufficient foundation for disqualification. I see no need to address the Basic Law bill that Balad presented, to which my colleagues referred, given that the Balad Knesset members who served in the last Knesset are not included in the current list, and given the clarification by the list’s attorney that the bill is not part of Balad’s platform.

9.         In the matters of Ofer Cassif and the Hadash-Ta’al list, as well, I concur with the conclusion that the evidentiary foundation is insufficient to ground the claimed causes for disqualification.

 

Justice M. Mazuz:

            I concur in the main points of the reasons and conclusions of President E. Hayut, and I wish to add two comments. Because they are not necessary for the decision, I will state then in brief:

1.         The cause of “negation of the existence of the State of Israel as a Jewish state”:

            As we know, the cause of “negation of the existence of the State of Israel as a Jewish and democratic state” under sec. 7A(a)(1) of Basic Law: The Knesset formerly comprised two separate causes: “Negation of the existence of the State of Israel as the state of the Jewish people”, and “negation of the democratic character of the state” (secs. 7A(1)-(2)). The two causes were unified in the framework of a 2002 amendment to Basic Law: The Knesset that added the authority to disqualify a candidate (not just a list) and the cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel. As explained in the Explanatory Notes, this unification derived from the desire for uniformity between the wording of sec. 7A and sec. 5 of the Parties Law, 5752-1992 (“and this because the two sections are interrelated”), and was not intended to introduce a change in the content of these causes by virtue of their unification.

            In practice, the unification of the causes, which involved a certain change in the wording of the cause, was the basis for an interpretation of this cause that was both different in content and broader in scope. While under the prior wording, the cause of “negating the existence of the State of Israel as the state of the Jewish people” addressed the negation of the view that the State of Israel is the state of the Jewish people in the sense of the place in which it realizes its right to self-determination, under the unified wording, the term “Jewish state” was interpreted as referring to the internal content of the state’s identity and the elements of the Jewish identity of the state from within (“the primary symbols” of the state and the “nuclear characteristics” of its Jewish identity).

            In my opinion, the proper interpretation of the cause for disqualification of “negating the existence of the State of Israel”, like the separate cause under the prior wording, refers to the identity of the State of Israel as the state of the Jewish people in the national sense, as the place in which it realizes its right to self-determination, and not as referring to internal features of the state that characterize it as a Jewish state. This position has consequences, inter alia, in regard to how to view the Basic Law: A State of all its Citizens Bill introduced at the time by Knesset members of Balad, however, in view of the President’s conclusions in this regard (para. 58), I see no need to expand upon my approach to the bill and I will only note that I agree in principle with the comments of Justice I. Amit in paras. 4-5 of his opinion.

 

2.         A Probability Test and Incitement to Racism:

            This issue has been addressed on several occasions in previous case law, beginning with the first Neiman case, and various opinions – mostly rejecting it in general, or at least in regard to the cause of incitement to racism – but it has been left for further consideration and remains undecided.

            I am of the opinion that there is no place for a probability test in applying the causes for disqualification under sec. 7A of Basic Law: The Knesset. The probability test has no grounding in the language of the law, and it raises many – theoretical and practical – difficulties in its application. I will not presume to exhaust all the reasons for this position, but will suffice with a few words: first, in terms of the interpretation of the law. As we know, the interpretation of a statute begins with its language and is limited by it. There are no grounds for requiring a probability test in the language of sec. 7A. Section 7A refers to objectives and actions, including statements, by a list or candidate. We are concerned with causes of “conduct” not “results”. Second, the Court, called upon to approve or review a decision by the Central Elections Committee to disqualify a candidate or list, lacks the tools for applying a probability test for the purpose of approving or rejecting the probability evaluation of the Elections Committee. A probability estimate in the public-political context is inherently speculative, and the Court would do well to refrain from it. Third, and this is the main point, sec. 7A treats of the lack of legitimacy of a list or candidate who meets the disqualification criteria to participate in the “democratic game”. The theoretical basis for disqualifying lists or candidates, as stated, does not suffice by preventing a real, concrete threat, but primarily concerns not granting legitimacy to lists of candidates whose objectives and actions are beyond the legitimate democratic boundaries for participating in the democratic elections.

            It would appear that the cause of “incitement to racism” under sec. 7A(a)(2) well demonstrates this. Incitement to racism and racist acts are unacceptable per se, as they are contrary to the most basic values of a democratic society, which is founded upon the idea of the equality of human beings. We are concerned with universal values accepted in the law of nations. Under the International Convention on the Elimination of All Forms of Racial Discrimination, known as the CERD Convention – signed by the State of Israel on March 7, 1966, ratified on Jan. 3, 1979, and entering into effect on Feb. 2, 1979 – the State of Israel assumed, like the other signatory nations, inter alia, the obligation to prohibit racial and other discrimination and to adopt all means, including legislation, to bring about its end (art. 2(1)(d) of the Convention). In 1985, together with the amendment of Basic Law: The Knesset and the addition of sec. 7A, the Penal Code was also amended with the addition of Article 1A: Incitement to Racism, which established various offences of incitement to racism (both amendments were included in the same pamphlet of bills – H.H. 5745 193). The offences of incitement to racism are conduct crimes, not result crimes, and do not comprise an element of probability (“it does not matter whether the publication did cause racism” – sec. 144B(b)).

            Incitement to racism is, therefore, prohibited and unacceptable without regard for the probability of the realization of its objectives. It is an illegitimate form of discourse in a democratic society. Incitement to racism does not represent any protected value that requires a balancing of interests. The value of freedom of expression, which is the life breath of democracy, was intended to protect non-violent public debate and to permit a conceptual contest among legitimate values in a democratic society. Racist discourse “pollutes” the democratic discourse and undermines the purpose of conceptual inquiry among the members of society and the free establishment of views on the basis of democratic values. Therefore, the reason for preventing the participation of a list or candidate that incites racism in the elections is not restricted to a fear of the realization of the objectives of the incitement, but is primarily concerned with the public value of not granting legitimacy to racist speech as part of the democratic discourse. In this sense, the cause for disqualification for incitement to racism is a special case of the cause relating to the negation of the democratic character of the state.

            Lastly, I would emphasize that I do not believe that the probability test is necessary for mitigating the causes for disqualification or for granting flexible tools for their application. To that end, the case law established a strict, narrow interpretive approach to the causes of disqualification. Strict criteria were also established that are implemented in judicial review of this matter, among them the demand that the objectives attributed to a list or candidate constitute a central, dominant objective and not a secondary, marginal issue, and the requirement of active, consistent, and systematic action for the realization of those objectives. It was further held that the evidence for disqualification must be persuasive, clear and unambiguous. All of these provide the Court with effective tools to ensure that the disqualification authority, which is an exceptional and intrusive authority, be exercised only in extreme, clear cases, without the need for the problematic means of a probability test.

 

Justice N. Sohlberg:

1.         If we were to interpret and implement the causes for disqualification in sec. 7A of Basic Law: The Knesset as written, as they would be understood by the average person, then not only would Dr. Michael Cassif be barred from candidacy for the Knesset elections. A plain reading of the section would, in all probability, lead us to conclude that additional lists and candidates whose matters have been examined by this Court over the years would also be granted this dubious honor.

2.         However, that is not the case. From the very outset, this Court adopted a strict approach to the legal interpretation of sec. 7 and to its application in practice. This approach reflects a value-based decision that democracy grants special – almost supreme – importance to the constitutional right to vote and be elected. Disqualifying a list or a candidate from standing for election to the Knesset must be the very last resort; one that is reserved for manifestly extreme case in which there is no room for doubt: “The essence of such a matter, the limitation of a basic constitutional right, inherently carries a standard of interpretation that must be strict and narrow, and section 7A should be reserved for only the most extreme cases. This interpretive approach does not conflict with the statute but is rather a result of a proper understanding of the purpose of the statute, which does not seek to limit freedoms, but to protect them against actual danger” (the second Neiman case, p. 187; emphasis here and below added – N.S.). This approach has become firmly rooted in the case law of this Court: “Preventing the participation of a party in the elections is a most extreme step. The right to vote and to be elected is a right of the highest constitutional level” (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], p. 802, per Deputy President A. Barak); “Preventing a party from participating in the elections is an extreme and exceptional step that in many ways directly contradicts the fundamental principles upon which democracy rests” (the Balad case, para. 3 of the opinion of President Beinisch); “Preventing participation in Knesset elections is an extreme step that is reserved for the most exceptional cases for which the normal democratic tools are insufficient” (the second Zoabi case, para. 75 of the opinion of President M. Naor).

            I will briefly summarize the guiding criteria as expressed in the case law: Barring participation in Knesset elections will only be done as when all else has failed.

3.         Recently, in the Basic Law: The Knesset (Amendment no. 47) (Prevention of Participation in Elections due to a Candidate’s Statements) Bill, the constituent authority expressed the view that it accepts the narrow path taken by the Court in applying sec. 7A. The bill expressly established that a person’s actions also include his statements. The Explanatory Notes clarify as follows: “The proposed amendment expressly anchors the approach accepted in the case law in this matter, according to which “actions” under sec. 7A of the Basic Law also include statements. Thus, the amendment is not intended to alter the Court’s case law according to which the application of sec. 7A of the Basic law will performed narrowly and strictly in order to protect the state’s most vital interests” (H.H. 675, p. 52). However, there was also some criticism of the direction of the case law, on the need to take care not to adopt an overly restrictive interpretation of the causes for disqualification in sec. 7A, while unduly expanding the boundaries (see, e.g., the second Zoabi case, para. 8 of the opinion of Deputy President E. Rubinstein).

4.         The criteria developed in the case law for the application of sec. 7A, which reflect the narrow interpretive approach, were set out in para. 16 of the opinion of my colleague the President. Primarily, in brief, one must show that the cause for disqualification can be found in the objectives or the actions of the list or candidate; those objectives or actions must form part of the dominant characteristics of the actions of the party or candidate; they can be learned from express declarations or from unambiguously probable conclusions; theoretical objectives are insufficient, but rather one must show systematic “activity in the field” that must constitute severe, extreme expression in terms of its intensity; and lastly, the evidence based upon the above must be “persuasive, clear, and unambiguous”.

5.         On the basis of those criteria, my colleague the President found, and my colleagues concur, that the evidentiary foundation in the matter before us paints an unambiguous and persuasive picture according to which Ben Ari “systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public” (para. 42 of the President’s opinion). Therefore, she held that he must be disqualified.

6.         I considered and reconsidered the matter. I carefully read the various statements, watched and listened. I considered the various clarifications and explanations over and over again, and the dilemma was difficult and weighed heavily. I did not easily decide to disagree with my colleague’s conclusion. The source of my dilemma was the substantial gap between the image of Ben Ari as reflected in the virtual arena – in the social networks – and that shown us in the Elections Committee’s hearings and in the Court. Thus, in his affidavit in the instant proceeding, Ben Ari rejected the claims about his racist views, and declared, inter alia, as follows:

I do not think that people are of different value due to their ethnic, national or religious origin. All human beings were created in the Divine image, and all human beings were granted free choice. Your own deeds will cause you to be near, and your own deeds will cause you to be far[1] […] In my view, the Arab National Movement, whose purpose is to destroy Jewish sovereignty through the use of violence and terror is the enemy of the State of Israel, of the Jewish people and of Zionism. I would like to emphasize that what makes it an enemy of the state, the people and of Zionism is not the ethno-national origin of its members and supporters, and not their religious belief.  What turns the members and supporters of the Arab National Movement into enemies are the political objectives that this movement established and the ways in which it acts for the realization of those objectives since the beginning of the 20th century and to this day […] Anyone who accepts that the State of Israel is the state of the Jewish people and agrees that Israel is a Jewish and democratic state is a desirable citizen who is worthy of all the civil, social and political rights without regard for religions, race, sex, ethnic origin or skin color. In addition, I am of the opinion that basic human rights are granted to every person as such, and that the state must act justly and fairly toward every person without regard for religion, race, sex, ethnic origin, or skin color (paras. 9, 16-17 of the affidavit).

7.         Further on in the affidavit, Ben Ari addresses all the statements quoted in his regard (as opposed to in the hearing before the Elections Committee, in which he addressed only a part of them) and explained that “all of my arrows are directed against those who are not loyal to the State of Israel and hostile to the Zionist enterprise. Even if, at times, my words may sound or be apprehended as general, that absolutely does not reflect an intention to generalize, and in no way reflects my true, consistent opinion” (para. 22 of the affidavit). Like the cases adjudicated by this Court in the past, real doubt arises in regard to the sincerity of Ben Ari’s declarations.

8.         Three examples from the past: (a) Baruch Marzel declared, at the time, that he had recanted his prior views, that he sought to act only in accordance with the law, accepts the principles of democracy, and had withdrawn from the path of generalized statements of the Kach movement. A long line of evidence led the Court to a conclusion in regard to “a real doubt as to the sincerity of Mr. Marzel’s declarations, according to which he had disavowed his approach and his former racist, undemocratic ideology” (the Tibi case, para. 81 of the opinion of President A. Barak). Later, prior to another election, President M. Naor stated: “I, too, do not believe that Marzel has changed his views and thoughts” (the second Zoabi case, para. 33). (b) Hanin Zoabi declared, at the time, her opposition to violence, and nevertheless “it was difficult for me to be persuaded that MK Zoabi does not support armed struggle” (ibid., para. 7 of the opinion of my colleague Justice I. Amit). (c) MK Azmi Bishara argued, at the time, that he opposed violence and armed struggle, and he, too, did not earn much trust: “There is doubt in our hearts. But the doubt must act – in a democratic state that believes in freedom and liberty – in favor of the freedom to vote and to be elected” (the Tibi case, para. 46 of the opinion of President A. Barak).

            As may be recalled, Hanin Zoabi and Azmi Bishara served honorably as members of the Israeli Knesset. Marzel’s candidacy was also approved, twice, although he was not elected. And what of the case of Ben Ari? In the end, his statements “in real time” speak for themselves, and clearly to his detriment. I will not belabor the point and repeat what has already been presented at length in the opinion of my colleague the President. I will suffice by referring there, and the reader will not be pleased. The statements are not at all consistent with the tolerant, placating tone that arises from the above affidavit presented in these proceedings. Which Ben Ari should we therefore believe?

9.         Ultimately, I inclined to the view that there is no justification for ordering Ben Ari’s disqualification. I have not arrived at this conclusion because I take incitement to racism lightly, but because I am strict in regard to the fundamental constitutional right to vote and to be elected. Given the strict criteria applied in the case law of this Court over the years, and in view of Ben Ari’s explanations and clarifications, there is doubt as to whether the statements amount to incitement to racism or a negation of the democratic character of the State of Israel to the point that would justify barring Ben Ari from running in the Knesset elections. Indeed, the fundamental right to vote and to be elected is not absolute. In appropriate circumstances, it is proper to limit it, but that is not the situation in his regard. While the evidentiary foundation in the matter of Ben Ari is broad in scope, it is not more exceptional, extreme and severe in “quality” and intensity than matters brought before this Court in similar cases (both in the Tibi case and the second Zoabi case). While Israeli democracy requires protection, it is still strong enough to comprise even Ben Ari as a member of Knesset (as we may recall, Ben Ari already served in the position in the recent past, in the years 2009-2013).

10.       This result is required for two additional considerations that are of a practical nature: First, the procedural framework in which we act. As we know, sec. 7A was presented to the Knesset together with the Penal Law (Amendment no. 24) Bill, 5745-1985, which established an express criminal prohibition upon incitement to racism. “We are determined to combat the phenomenon of incitement to racism with full force. To that end, we decided to act on two planes – on the constitutional plane, by including incitement to racism as a cause for the disqualification of a list of candidates from participating in Knesset elections, and on the penal plane – establishing an offense of incitement to racism in the Penal Law” (from the statement of the Minister of Justice, MK Moshe Nissim, in presenting the bills for a first reading; Knesset Record (5745), p. 2381). As opposed to the criminal process, which is conducted in accordance with a clearly defined framework of procedure, which includes, inter alia, an evidentiary proceeding in which it is possible to question and interrogate carefully, in the constitutional proceeding before this Court, the factual examination is far more limited. This requires us to be especially careful in drawing conclusions and establishing facts on the basis of the evidentiary foundation presented before us. Second, lest we forget: Even after a candidate has cleared the hurdle of sec. 7A, Israel is not bereft:[2] “The very fact that a candidate is permitted to contend in the Knesset elections does not mean that from the moment he is elected he may do whatever he pleases. There is still the possibility of rescinding the immunity of a member of Knesset in certain situations, placing him on trial if it be found that he committed a criminal offense, and terminating his tenure in the Knesset if he is found guilty of an offense of moral turpitude” (the first Zoabi case, para. 35 of the opinion of President A. Grunis).

11.       It cannot be denied that Ben Ari’s statements – at least in large part – are hard to digest. I was, indeed, very annoyed by his callous style, the racist tone, and the coarse generalities. It does not do honor to him or to those who listen to his teachings. We can and should protest against evil, and against those who seek our harm and our lives – foreign and domestic. But we are obliged – particularly as public servants – to do so responsibly and carefully. Nevertheless, even when common sense protests and the soul recoils from Ben Ari’s statements, there is still no justification for placing him beyond the pale. The strength of freedom of expression, the strength of democracy “is not the recognition of the right to speak pleasantries that are soothing to my ears. Its strength is in the recognition of the right of the other to say things that are grating upon my ear and that pierce my heart” (HCJ 14/86 Laor v. Theater and Film Review Board [22], p. 441). That is true of freedom of expression in general, and of political speech in particular, when what is at stake – we will not refrain from repeating – is a mortal blow to the fundamental constitutional right to vote and to be elected.

12.       I wholeheartedly concur with my colleague the President on our obligation to combat racism uncompromisingly. As a son of my people and a descendant of my family, I am well aware of where the terrifying harm of hate of the stranger and the different leads. But make no mistake, the two are not comparable, and not even close. And note: the struggle against racism is not only on the legal plane, but also – and primarily – on the educational plane, “in a reassessment of the ways of educators and pupils alike, in all walks of our society” (the first Neiman case, p. 302). In this regard, it would be proper to quote what Rabbi Zvi Yehuda Kook wrote in the month of Nissan 1947 in a letter to the principals and teachers of a Jerusalem school. The Minister of Justice, MK Moshe Nissim, quoted part of the letter, titled “Embarrassing and Sad Conduct of Children”, in presenting the bill in regard to sec. 7A to the Knesset plenum for a first reading, as follows:

To the Principal and Teachers of a school here in our Holy City, may it be rebuilt and reestablished!

I must bring the following matter to your honorable attention, as follows: This morning, while passing by the school on the way to Yaffo-Ben Yehuda Street, I saw some from among a group of children from the school repeatedly hitting and coarsely taunting Arab peddlers who passed there. Twice together – at the two Arabs, one young and one old, who were apparently partners, beginning with the younger one and continuing with the older one with particular coarseness. This occurred a short distance from the gate to the schoolyard. Then again at a youngster on the sidewalk of Jaffa Road, at the corner of Ben Yehuda Street.

I was saddened and very ashamed by what I saw. Due to their running and mischief, I was unable to catch them and rebuke them for this. I do not know who these children are, or who are their parents and teachers. I know only that they were from the school. Not all of them, not all of the group of children from the school, took part in that despicable harm and taunting, but some of them. And I believe that some of them protested.

Nevertheless, the very existence of this fact, which pained and insulted me, as noted, requires that I bring to your awareness the need for greater and special educational attention to bringing an end to such possibilities, both in and of itself as a matter of Jewish law and morality, and in terms of the practical community and political value of preserving peace and good neighborliness.

With all due respect and in the hope of the glorification of God and the salvation of his people and heritage.

            Here we see plain, clear, resolute, human Jewish morality. We must walk in its light.

13.       For the same reasons for which I was of the opinion that we should not order the disqualification of Ben Ari, I arrived at the conclusion that the Election Committee’s decisions in the matters of the Ra’am-Balad list and of Dr. Ofer Cassif should be overturned and that the appeal in regard to the Hadash-Ta’al list should be denied, and that we should hold that they are not barred from participating in the Knesset elections. As in regard to the decision is the matter of Ben Ari, this decision, as well, was not at all easy. Some of the statements presented to us – both those attributed to Cassif and those attributed to other members of the Hadash-Ta’al list – are not pleasant to the ear, to put it very mildly. But just as we are enjoined and stand ready to defend against those who would incite to racism and thereby undermine the democratic character of the State of Israel, so we must defend against those who would undermine its Jewish character and who express support – express or implied, publicly or privately – terrorist attacks and murder. In the course of the debate on sec. 7A, prior to its first reading, MK Michael Eitan rightly stated in this regard:

The State of Israel has a political need to provide an answer to a long list of families of Jewish victims who were harmed solely because they are Jews here in the State of Israel on the question of whether the purpose of defensive democracy, that has been and is employed, is to protect them, as well. Can Jews in the State of Israel who are harmed by the agents of the PLO also find an answer in such legislation that is intended to defend democracy to the fact that there are people in the State of Israel who identify with the PLO and see themselves as its agents? And there is also a Knesset faction that once sent a telegram expressing solidarity to the Palestine National Council in Amman, which identifies with the PLO. Where is defensive democracy in their regard? Where is the symmetry? Should democracy defend itself only against insane Jewish fanaticism?

                        […]

When we discuss the issue of defensive democracy, we have to provide an answer to the Bromberg family, the Tamam family, the Ohana family, and a long list of families that daily ask the simple question: Is the purpose of defensive democracy to defend us as well, or is the only answer that marginal group to which we all take exception? And when I ask that question, I understand that we are treading a delicate, sensitive line because we are concerned with a democratic regime, we are not interested in silencing debate, we are not interested in outlawing lists. But in any event, we must ask ourselves the question what is the boundary line?

14.       Indeed, the question of where the boundary lies is difficult. It would seem that thirty years after the constituting of sec. 7A of Basic Law: The Knesset, there is no clear, unambiguous answer to this. In any case, as presented above, the special importance of the fundamental constitutional right to vote and to be elected obligates us to strict criteria whose bottom line is that when there is doubt, there is no doubt. Therefore, and for the reasons stated in the opinion of my colleague the President, I am of the opinion that what has been adduced before us is insufficient for ordering the disqualification of the candidacy of Cassif, the Hadash-Ta’al list, and the Ra’am-Balad list.

15.       One parenthetical objection: In the matter of the Balad party, the Attorney General noted that “were the Balad party running independently … there would be reason to carefully consider its disqualification”. However, “in view of the fact that under the prevailing legal situation, there is no possibility of disqualifying only half of a list (as opposed to disqualifying an entire list or disqualifying specific candidates on the basis of evidence relating to them personally), and in view of the fact that there are almost no arguments against the Ra’am list, it is necessary to examine whether the existing evidence suffices to justify disqualifying the joint list, in view of the case law of the honorable Court in regard to the need to severely limit such a disqualification”. My colleague the President did not expand upon that matter, having found other reasons for not ordering the disqualification of Balad (although she attributed weight to the fact that we are concerned with a joint list). For my part, I find the present legal situation very problematic, when a party that prima facie meets the requirements of one of the causes for disqualification can join with another party such that the joint list provides it with a “city of refuge”. This should be given consideration when and if the need to address this question arises in the future.

16.       In conclusion, where my opinion accepted, we would overturn the Election Committee’s decision in EDA 1806/19; deny the appeals in EA 1866/19 and EA 1867/19, and grant the appeal in EA 1876/19, and hold that Dr. Ofer Cassif, Dr. Michael Ben Ari, Advocate Itamar Ben Gvir, the Hadash-Ta’al list and the Ra’am-Balad list are not barred from standing for election to the Knesset.

 

Justice A. Baron:

            I concur in the comprehensive opinion of President E. Hayut, both in the conclusion she reached in each of the proceedings before us and in her reasoning. I will briefly add my view of the disqualification of the candidacy of Dr. Michael Ben Ari (hereinafter: Ben Ari) for election to the 21st Knesset, in which we are concerned with an exceptionally extreme step, akin to a “doomsday weapon”.

            The racist statements in the warp and weave of all of the recorded statements of Ben Ari cry out from the page and scorch the ears. Words are not “just” words. There are times when words are also acts, and in the case of Ben Ari’s statements they constitute a clear act of incitement to racism. Ben Ari makes improper use of words to arouse hatred against the Arab public, while portraying all Arabs as murderers and bitter enemies. His statements delegitimize an entire community, instigate conflict and strife, and even call for actual violence against Israeli Arabs. Moreover, we were presented with a solid evidentiary foundation that clearly shows that we are concerned with a severe, extreme case of incitement to racism. The racist statements are explicit, systematic (some 40 instances since 2017 alone), constitute a dominant characteristic of Ben Ari’s statements, and gain wide exposure in the media and on the social networks.

            The principle of freedom of expression, and particularly freedom of political expression, is a cornerstone of a democratic regime. According to this principle, “freedom of expression is not just the right to say or hear what is generally acceptable. Freedom of expression is also the freedom to express dangerous, irritating, deviant ideas that the public reviles and despises” (HCJ 399/85 Kahane v. Broadcasting Authority [23], p. 280). Words and statements can thus find refuge under the aegis of freedom of expression even when they express marginal ideas, and even when they arouse disgust, but given their “critical mass”, as noted above, Ben Ari’s words constitute incitement to racism and therefore undermine fundamental principles of democracy. As the case law of this Court has already made clear, “one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14). In this regard, I would note that in my opinion, as well, incitement to racism does not merit any protection, and therefore there is no place for applying a “probability test” as a condition for the application of the cause under sec. 7A(a)(2) of Basic Law: The Knesset.

            Ben Ari did not apologize for his statements and did not retract them. And if that were not enough, even his explanations continue to reflect a racist attitude toward the Arab public. According to Ben Ari, his recorded statements are not directed against the entire Arab public, but only toward those among it who are not “loyal” to the State of Israel. However, the recordings deliver a clear message that any Arab is disloyal, a traitor, and enemy, and dangerous by definition. We are, therefore, concerned with an extreme case that requires Ben Ari’s disqualification from participating in the elections for the Knesset.

 

Justice D. Mintz:

            I concur in the opinion of my colleague the President in regard to the partial granting of the appeal in EA 1866/99 and with the holding that Ben Ari is barred from participating in the elections for the 21st Knesset, which is not the case in regard to Ben Gvir. I also agree that the appeal in EA 1867/19 should be denied, and that it should be held that the Hadash-Ta’al list is not barred from contending in the elections for the 21st Knesset. However, I cannot agree with the position in the matter of overturning the Election Committee’s decision in EA 1876/19 in the matter of the Ra’am-Balad list and in EDA 1806/19 in the matter of MK Ofer Cassif. In my view, those decisions should be left standing, and we should hold that the Ra’am-Ta’al list and MK Cassif are barred from participating in the elections for the Knesset, as I shall explain.

Foreword

1.         The starting point for this discussion is that the restrictions upon the constitutional right to vote and to be elected to the Knesset must be minimal, and they must protect the most vital interests of the state (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], pp. 802-803). This Court has recognized the justification for limiting those rights even before an express provision was enacted to permit the disqualification of a candidate or list from participating in the elections for the Knesset when it was long ago held that the right to vote and to be elected can be limited in order to protect the very existence of the state (EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the 6th Knesset [8], p. 387) (hereinafter: the Yeredor case); EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11th Knesset [4]) (hereinafter: the first Neiman case)). And as Justice J. Sussman stated: “Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map.” (the Yeredor case, p. 390). The restriction of rights is justified in the name of the right of a democracy to defend itself against those who would seek to employ democratic tools for the purpose of negating the very existence of the state, harm its fundamental principles or advance anti-democratic objectives (EDA 9255/12 Central Election Committee v. Zoabi [3], para. 8 of the opinion of President A. Grunis); EDA 1095/15 Central Election Committee for the 20th Knesset v. Hanin Zoabi [6], para. 7 of the opinion of President M. Naor) (hereinafter: the Zoabi case).

2.         The desire to prevent the use of democratic tools to advance anti-democratic objectives that undermine the existence of the state stood at the basis of the enactment of sec. 7A of Basic Law: The Knesset (hereinafter also: the Basic Law), to which various amendments were made over the years. The last, in 2017 (Basic Law: The Knesset (Amendment no. 46), 5777-2017 (hereinafter: Amendment no. 46)) clarified that a candidate could be disqualified if his objectives or actions, “including his expressions”, included the negation of the existence of the State of Israel as a Jewish and democratic state, incitement to racism or support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The legislature had its say and defined the boundaries of the right to vote and to be elected in light of the basic and most vital principles for the existence of the state.

3.         It should be noted that sec. 7A of the Basic Law is not the only legal provision that restricts the use of a right granted by democracy in order to prevent harm to the basic, most vital principles for the existence of the state in general, and its existence as a Jewish and democratic state in particular. This purpose is also expressed in the framework of sec. 5 of the Parties Law, 5752-1992, which denies the possibility of registering a party, inter alia, for the causes enumerated in sec. 7A of the Basic Law. Section 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 defines the limits of the material immunity granted to an elected official by virtue of his office in a manner similar to that in sec. 7A (HCJ 11225/03 Bishara v. Attorney General [13], pp. 306-307). As the President also noted, the Basic Law was amended in 2016 to include a provision authorizing the Knesset to end the tenure of a member of the Knesset for incitement to racism or for supporting armed struggle against the State of Israel (the cause of negating the existence of the State of Israel as Jewish and democratic was not included in the framework of that provision in view of its being general and more ambiguous, and upon the presumption that the Knesset plenum would have difficulty applying it (see: HCJ 5744/16 Ben Meir v. Knesset [12], para. 29 of the opinion of President E. Hayut).

4.         These supplementary provisions define a clear boundary beyond which actions, objectives and expressions are not legitimate for elected representatives and for a party or list of elected representatives. The gates of the house of representatives are not open to those who seek to harm the character of the State of Israel as Jewish and democratic (including the cause of “incitement to racism”, which constitutes a special case of harm to the democratic foundations of the state) or to support an armed struggle against it and thus to support a threat to its very existence. What is concerned are actions that do not afford material immunity for those who succeeded in being elected to the house of representatives. Some of those causes also permit the termination of the tenure of those who seek the state’s harm. The underlying premise is that a person who seeks to take an active part in Israeli democracy and its institutions must accept the principles of its existence and the democratic “rules of the game” (see, for example: EDA 11280/02 Central Elections Committee v. Tibi [1], p. 23 (hereinafter: the Tibi case)). This, even though such actions or expressions may sometimes fall within the bounds of freedom of expression granted to every person in the state. In other words, what is permitted to every person is not necessarily granted to a person who seeks to be elected to the legislature. The reason for this is clear: the principle of freedom of expression grants every person the freedom to express himself even in a manner that contradicts the principles of the Jewish and democratic regime of the State of Israel (within the bounds of the law). However, permitting a person who voices such ideas to be elected to the legislature may lead to a situation where he will “import” his ideas into the legislature and thus undermine the foundations of the regime upon which the state rests by implementing or realizing his ideas. In this regard, Justice T. Strasburg-Cohen nicely distinguished the two (in the Tibi case, p. 70):

It would be appropriate to note that Israeli democracy does not prevent Knesset Member Bishara from expressing his views, which he terms “theoretical”, “philosophical”, or “historical”, from any platform, in accordance with the law. However, as far as membership in the Knesset is concerned, those views that are part of his political views, and he seeks to implement and realize them, inter alia, by means of his membership in the Knesset. Therefore, those views greatly deviate from theory, philosophy, and history and cross into the area of political activity.

 

The Causes for Disqualification and Amendment no. 40 of the Basic Law

5.         The criteria established in the case law in regard to the implementation of the provisions of sec. 7A of the Basic Law were clarified at length by the President, and I do not intend to dwell upon the matter. I will only say a few words about the distinction in the framework of this provision between disqualifying a candidate and disqualifying a list from participating in the Knesset elections. Thus, while the section establishes that “a list of candidates shall not participate in elections to the Knesset … should there be explicitly or implicitly in the goals or actions of the list …” (emphasis added – D.M.) one of the causes enumerated therein. The wording in regard to the disqualification of a candidate is somewhat different. As it reads at present, after Amendment no. 46, the disqualification of a candidate shall be possible “should there be in the actions of the person, including his expressions” one of the causes enumerated in the section. This difference is no trifling matter.

6.         As we know, a law is interpreted in accordance with its language and purpose. First, the starting point of interpretation is the language of the law, where the written text should be given the meaning that its language can carry (Aharon Barak, Interpretation in Law – Interpretation of Statutes 81 (1993) (Hebrew) (hereinafter: Interpretation in Law); HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner [24], para 9). The language is the framework for the work of the interpreter, and he may not breach it (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset [5], p. 702). When the text tolerates different meanings, the interpretation that realizes its purpose should be chosen (Interpretation in Law, 85). In the present matter, as noted, Amendment no. 46 added the words “including his expressions” to sec. 7A of the Basic Law in regard to a candidate. According to the plain meaning, statements that can undermine the existence and fundamental principles of the state are sufficient to lead to the disqualification of a candidate from being elected to the Knesset, and there is no need for acts. That is also the interpretation that is consistent with the purpose of the section, which is intended to contend with those who seek to employ democratic tools in order to further anti-democratic objectives.

7.         Indeed, as the President noted, the Explanatory Notes to the bill state that the amendment was not intended to change the case law of the Court “according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state” (H.H. Knesset, 675). It is also important to explore the legislative history of legislation, through which it is possible to ascertain the legislative intent and purpose (Interpretation in Law, 161; CA 4096/18 Chacham and Or-Zach v. Assessment Officer [26], para. 20). However, I cannot concur with the position that the language of the amended provision is meaningless and that what has been is what will be. As has been said: “The legislative purpose, and certainly the legislative history, cannot give the law legal meaning that it cannot bear” (Interpretation in Law, 353). Indeed, there is nothing in Amendment no. 46 that would violate the principle that the provisions of sec. 7A of the Basic Law be interpreted narrowly. I also accept that the words of a candidate or the Knesset, as well as his deeds, be examined meticulously, inasmuch as disqualification remains an extreme act that should be employed only in exceptional circumstances, as has been held in the past (see, e.g., EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18th Knesset [2], para. 3 (hereinafter: the Balad case)). Nevertheless, that does not mean that the amendment does not affect the causes for disqualification established under sec. 7A of the Basic Law as we knew them in the past.

8.         First, one cannot ignore that in the past, the view was expressed in the case law of this Court that “expressions”, as opposed to “actions” do not fully fall within the compass of sec. 7A of the Basic Law. Thus, for example, in the Zoabi case, Justice H. Melcer noted: “An action in Israel’s sub-constitutional law does not generally include expression, and therefore, when the legislature sought to treat of expressing an opinion orally or in writing, it did so separately, alongside the action, or defined: “an action including an expression” (para. 2b of his opinion; and compare para. 121 of the opinion of Deputy President Rubinstein in the same matter). If, at the time, there was any doubt whether “expressions”, as distinct from “actions”, could be included under the provisions of sec. 7A of the Basic Law, then since the enactment of Amendment no. 46 of the Law, it has been expressly clarified. The legislature made itself unambiguously clear that the power of a word is as good as the power of an action. As was said: “Death and life are in the hand of the tongue” (Proverbs 18:21), “Does the tongue have a hand? This comes to teach us that just as the hand can kill, so the tongue can kill…” (Babylonian Talmud, Arakhin 15b).

9.         Second, although the line separating “expression” and “action” is not always clear, we cannot ignore that the interpretive principles outlined in the past in regard to the causes for the disqualification of a candidate placed emphasis on the candidate’s actions as against his expressions. Thus, for example, “actions” that must be given severe, extreme expression was spoken of (the Tibi case, p. 17). As for the third cause, which concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel, it was held that such “support” can be “material” or “political” (the Tibi case, p. 26; the Balad case, para. 7). Thus, Amendment no. 46 has the potential to change the criteria that were developed for the disqualification of a candidate, which have, until now, been based upon those established for the disqualification of lists.

 

The Probability Test

10.       Another matter that requires examination, and which should be addressed prior to diving into the appeals before us, is the question of the applicability of “the probability test” noted by the President, that is, whether the participation of a party or a candidate can be prevented from participating in the elections where it has not been proven that there is a probability that they may actually realize one of the causes established under sec. 7A of the Basic Law. This question already arose in the first Neiman case, which was adjudicated prior to the enactment of sec. 7A of the Basic Law, in regard to the disqualification of a list. In that matter, Justice A. Barak expressed his view that although the matter was not expressed in either the majority or minority opinions in the Yeredor case, the disqualification of a list is possible only when there is a “reasonable possibility” that the party’s platform will be realized in practice. However, after the enactment of sec. 7A of the Basic Law, it was clearly established in EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12th Knesset [5], 188 (hereinafter: the second Neiman case) that:

In setting forth the principles of sec. 7A, the legislature did not require the existence of a clear and present danger, the probability of danger arising from the objectives and conduct of the party in question, or any similar test that looks to the connection between the condemned action and the possible results. Through this, the legislature changed the legal status until the enactment of Basic Law: The Knesset (Amendment no. 9).

            Thus, in enacting sec. 7A of Basic Law: The Knesset, the legislature abandoned the possibility of “the probability test”. In this regard, I join in the comments of my colleague Justice M. Mazuz. The provisions of the Basic Law contain no requirement for a reasonable possibility of the actual realization of the threat arising from the actions or platform of the list or its objectives (or from the actions of a candidate or his objectives, under the current wording of the section). There is firm support for the view that the matter was decided long ago in the second Neiman case, despite the questions that later arose in the Tibi case. In brief, I would note that I also find great substance in the view of Justice E. Mazza in the Tibi case (pp. 98-99) that making disqualification contingent upon the probability test could render sec. 7A devoid of all content, inasmuch as the more extreme, severe and outrageous the message, the less the probability of its actually being realized.

 

Critical Mass

11.       The case law of this Court has established that in order to approve a disqualification decision, the Court must have before it evidence that is “persuasive, clear and unambiguous” (the first Neiman case, pp. 250-251; the second Neiman case, p. 197). When the Court is convinced that such evidence has been laid before it, then the material thus constitutes the critical evidentiary “mass” required in this regard (see: the Tibi case, p. 42). This evidence can satisfy the Court as long as it is convinced of its truth, as the Court does in every matter given to its decision.

            This is not a quantitative but a qualitative test. If, for example, the Court is convinced by a single piece of evidence (and unlike this case in which there is a compendium of evidence) that can decide the matter in a certain direction, then it can base its decision thereupon. Only then will that single piece of evidence constitute a “critical mass”. As opposed to this, sometimes there is an accrual of many pieces of evidence whose force does not tip the scales and it will not constitute a “critical mass”. There is nothing actually new in this (see, for example, in the various proceedings: CrimA 7007/15 Shmil v. State of Israel [27], para. 22; CA 8742/15 Astrolog Publishers Ltd., v. Ron [28], para. 44; Yaakov Kedmi, On Evidence, Part IV, 1761ff. (2009) (Hebrew)). Indeed, the force of the evidence required for a decision changes in accordance with the category of the matter given to the Court’s decision. Sometimes, evidence that banishes all reasonable doubt is required. Sometimes, evidence that tips the scale of probability is required. Sometimes, “administrative” evidence of varying degrees is required. This, too, is not new (see, for example: CrimA 961/16 Alharoush v. State of Israel [28], para. 15; AAA 3326/18 A. v. Director of Firearm Licensing [30], para. 20). The present matter requires highly persuasive administrative evidence, and not necessarily a large amount of evidence. It is not the quantity that is decisive, but the quality.

            And now to the matter before us in the proceedings in which I disagree with my colleagues.

 

EA 1806/19 In the Matter of Cassif

12.       As noted, my colleagues decided not to disqualify Cassif’s candidacy for the Knesset elections, and I cannot concur. In my view, an examination of the material presented to us reveals that there is no room for doubting that Cassif’s statements clearly cross the legitimate boundaries defined in the framework of sec. 7A of the Basic Law. Thus, inter alia, Cassif published the following:

Uniting the democratic forces for a struggle against the Judeo-Nazism that is taking over our society is not enough, although it is certainly needed, there is a necessity for changing the methods, you don’t sing songs against fascism, you fight (report on Channel 20, May 22, 2016, quoting Cassif).

            In another report, he is heard saying that “in the Israeli discourse that the current Israeli government has created, killing Arabs is legitimate. This is how one descends into the abyss of what happened in Germany 80 years ago” (report of Channel 20 of April 12, 2018). Similarly, in regard to the Hamas, which is known to be a terrorist organization that is waging a murderous war of terror against Israel (and see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior [31], para. 10 of the opinion of Deputy President M. Cheshin), Cassif is quoted as saying that the organization is a “political party” (report on Channel 20 of April 11, 2018). In addition, in an article on the Makor Rishon website from Feb. 7, 2019, it is reported that in the course of an interview with him, he stated that the State of Israel must not be a Jewish state. In addition to those statements, his clear, unambiguous statements expressed in a personal interview in the Ha’aretz supplement of Feb. 8, 2019, entirely fall within the scope of two of the causes for disqualification under sec. 7A: negation of the existence of the State of Israel as a Jewish and democratic state, and support for armed struggle by a terrorist organization against the State of Israel. Thus, Cassif presented an unadorned statement of his worldview, which includes the revocation of the Law of Return, 5710-1950 (hereinafter: The Law of Return) (p. 28 of the interview) and changing the symbols and anthem of the state (p. 26 of the interview).

            One cannot ignore that it is his position that The Law of Return should be revoked, as if it were a stumbling block rather than a law that expresses a supra-constitutional principle grounded in the Declaration of Independence, the Jewish people’s right to self-determination, and its connection to its homeland (see, for example: HCJ 7625/06 Rogachova v. Ministry of Interior [31], para. 28 of the opinion of President M. Naor; Ariel Bendor & Elichai Shilo, Israel as a Jewish State: Constitutional Significance, in Strasburg-Cohen Volume 160 (2017) (Hebrew)). Cassif’s clear statements fall completely within the bounds of statements that express the negation of the most nuclear foundations of the State of Israel as a Jewish and democratic state, as defined long ago in the Tibi case.

13.       However, these statements are dwarfed in their intensity in view of what Cassif stated about harming IDF soldiers. This is what he said:

Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable (p. 26 of his interview with Ha’aretz).

            We are concerned with matters that are most explicitly included in the cause for disqualification for support for armed struggle against the State of Israel. The fact that harming soldiers, in certain circumstances, is viewed differently from harming civilians under international law, or that it can be defined, according to Cassif, as “guerilla warfare”, does not change the fact that his statements explicitly express granting legitimacy and support for armed struggle against the State of Israel in accordance with the cause of disqualification under sec. 7A of the Basic Law. We are concerned with clear, unambiguous statements that cannot otherwise be interpreted or explained. There is “cold comfort” in that Cassif does not see such harm as “something wonderful, delighting, or desirable”.

14.       I do not find any real repudiation of these strong statements in Cassif’s statements before the Central Elections Committee or in the affidavit he submitted to the Committee, other than a denial of things attributed to him in the Makor Rishon newspaper (sec. 10 of the affidavit submitted to the Elections Committee), which, in any case, can be given only minimal weight in view of their being “second hand”. Cassif tried to place his extreme statements in a “political” context (pp. 29-30 of the transcript of the Elections Committee hearing of March 6, 2019), but this does not constitute a retraction of his harsh statements. In view of the severity and clarity of the statements, a general declaration alone, as Cassif expressed in para. 9 of his affidavit to the Elections Committee, is insufficient: “The request to disqualify my candidacy is a factual distortion and misleading interpretation of my words, and I therefore completely deny what is cited there”. It might have been expected that Cassif would clarify what that “factual distortion” was, and what misleading interpretation was given to the words. But other than this general, vague statement, what Cassif declared is insufficient to refute the existence of the solid evidence grounding the causes for disqualification.

            Cassif indeed notes, in a general way, in his affidavit that he “opposes all forms of violence against any person” (Cassif’s affidavit of March 3, 2019, para. 11). However, he in no way retracted the things he said in that interview – and not what he said in regard to harming IDF soldiers, in particular. On the contrary, in his affidavit, Cassif emphasized that in that interview in the Ha’aretz supplement he noted that he opposes harm to innocent civilians (ibid.). And as for harming IDF soldiers? Cassif’s silence is deafening.

15.       In his affidavit, Cassif reiterates his explanation that the statements attributed to him are, at most, “isolated” statements that “were made in order to sharpen a particular idea”, that the style of expression that included the term “Nazi” is not “characteristic” of him in general, that the statements were made in the heat of political debate, and that we are merely concerned with metaphor (para. 13 of the affidavit to the Elections Committee of March 3, 2019). However, it cannot be said that Cassif denies those expressions, retracts or denounces them, but at most, he explains them with various excuses. In the hearing before the Elections Committee, as well, Cassif did not express a clear, concrete disclaimer as to what he said, and in particular, I did not find any clear disclaimer of the statement that there is legitimate and moral justification for harming IDF soldiers. In the end, Cassif was kind enough to tell the Committee that he opposes violence (p. 34 of the transcript of the Elections Committee hearing of March 6, 2019). But that, as noted, is not enough. General statements according to which he rejects and opposes violence are insufficient in view of his sharp, clear statements in regard to harming IDF soldiers. According to Cassif’s approach, harming soldiers is not a form of “violence”. Moreover, when he was expressly asked in the Elections Committee hearing: “When you justify terrorist attacks upon IDF soldiers, is that not violence?” (ibid.), he did not provide a pertinent answer. In response to the question, he diverted to the causes for disqualification: “We are speaking here the language of the law, and we are talking about whether there are causes for my disqualification in light of Basic Law: The Knesset…”, while he repeated his general position that “I never even hinted at support for armed struggle or violent struggle at all. That is one cause that I do not meet”.

16.       Even Cassif’s repeated excuse that he made the statements as a “regular citizen” and not as a public representative, and that he would “not necessarily” use those expressions if he were elected to the Knesset (para. 13 of the affidavit submitted to the Elections Committee), do not work to his benefit. Cassif is currently being examined in regard to what he has already said, and upon opinions he has already expressed as a citizen. I would note in this regard that it is clear that the provisions of the law look to the future and do not seek to “punish” a candidate for his conduct in the past, but rather to contend with the fear of an elected official exploiting his status to perform improper acts (see: the Tibi case, p. 64). However, in order to answer the question whether the actions of the list or a candidate meet one of the causes for disqualification listed in sec. 7A of the Basic Law, the evidence that has accumulated in regard to that list or candidate must be examined, and this, naturally, often means before they were elected to the legislature. How can one accept the argument that Cassif should not be held accountable merely because we are concerned with statements that he made as a private individual? Every statement and action of a candidate (who has not served as a member of the Knesset in the past) is examined with consideration for the fact that the person concerned is a private individual seeking that the gates of the legislature be opened before him. Every such candidate is examined with consideration for things that he said before being elected as a public representative, while the accumulated material will always be from the period prior to his candidacy.

17.       Moreover, the argument by Cassif’s attorney that only “ideas on an intellectual basis” were concerned, cannot be of help. Statements supporting armed struggle against Israel and the negation of the existence of the State of Israel as a Jewish state cannot be explained away by saying that they concerned an “intellectual” debate (see, for example, the Tibi case, p. 70, which was quoted above in para. 4). This is all the more so in view of Amendment no. 40 to Basic Law: The Knesset of 2017, which made it clear, as noted, in accordance with the interpretive rules set out, that a candidate will be disqualified if his objectives or actions, “including his expressions”, constitute a negation of the existence of the State of Israel as Jewish and democratic, incitement to racism or support for armed struggle by a hostile state or terrorist organization against the State of Israel.

18.       As noted (in para. 4, above), the provisions of sec. 7A of the Basic Law create a distinction between the legitimate right of every person to express “ideas on an intellectual basis”, whatever they may be, from every platform (subject to very limited constitutional restrictions) and the statements of a candidate for election to the Knesset, where such a person seeks to move to the area of political activity. In accordance with the dictate of the legislature, theoretical ideas are examined from a different perspective when a person seeks to realize them by means of membership in the Knesset. Were Cassif’s statements examined as of an ordinary citizen, one might say that they are infuriating and enraging or that one should forcefully take exception to them, but they are protected as free speech. However, once Cassif sought to be elected to the Knesset, we must examine whether we are concerned with statements that express support for armed struggle by a terrorist organization against the state of Israel or whether they negate the existence of the State of Israel as a Jewish state, in the sense of denying its core foundations as established in the Tibi case. If the answer is positive – and as noted, I find it difficult to think otherwise – the candidate cannot rely upon the argument that the statements were made by him as “a private person” and that he is, therefore, exempt from answering for them. That is so in view of the purpose of sec. 7A, which, as noted, limits the use of the right granted by democracy, and in the present matter, the right to vote and to be elected, in order to prevent harm to the most basic, essential principles of its existence.

            In any case, once Cassif chose to clarify in his affidavit that he would “not necessarily” use the same expressions once elected to the Knesset (para. 13 of his affidavit), the excuse that the statements were made by him as a private individual cannot be maintained. Cassif is even unwilling to declare that those severe statements will no longer leave his lips as a public representative. Cassif himself made it clear that even after being elected, it is not necessarily the case that he will not repeat those things. In so doing, Cassif also declares that he refuses to accept the rules of the game – even if ultimately elected to the legislature (which actually occurred while these lines were being written).

19.       Indeed, not infrequently, a candidate will seek to “fix up” the positions that he publicly flaunted after he is threatened with disqualification, and in the framework of disqualification proceedings he will seek to explain that things are not what they seem. However, as a rule, a candidate’s request to deny his public statements – statements that often are those that paved his way to election to the Knesset and upon which the public trust in him was based – should be taken with a grain of salt. Dissociating from such statements in the disqualification proceedings may show those “corrected” positions to be stated solely to evade the verdict, as lip service, and not reflecting an authentic position (see: the opinion of Justice E. Rubinstein in the Zoabi case, para. 48). Cassif’s statements should be measured by the same criterion by which Ben Ari’s statements were measured. The two should not be distinguished. In a certain sense, Amendment n. 46 closed the gap between the evidentiary requirement for proving the causes for disqualification in regard to negation of the existence of the State of Israel as Jewish and democratic and support for armed conflict against the State of Israel and that of the cause of incitement to racism. Just as incitement to racism generally disqualifies by means of verbal statements (as also noted in para. 47 of the position of the Attorney general in EDA 1866/19), so too, the other causes disqualify through expression. If not identical, the evidentiary level of all the causes for disqualification should be similar.

            Just as Ben Ari’s statements disqualify him from running for the Knesset – despite his claim that he “is not a racist”, so Cassif’s words should disqualify him – despite his general claim that he “opposes violence” of any kind. The result should be identical for both.

20.       However, in certain circumstances, the gates can be opened to a candidate who retracts his statements. This, for example, if the candidate convinces that the evidence presented refers to old events, while declaring that he has changed his ways (that is the situation in the matter of Ben Gvir). A candidate who changes his ways is like a “penitent”, of whom the sages said: “In the place where penitents stand, even the wholly righteous cannot stand, as it is stated: Peace, peace upon him who is far and him who is near” (Babylonian Talmud, Berakhot 34b). Such a person is unlike one who “confesses but does not repent” who is likened to one who “immerses himself with a reptile in his hand”:

R. Adda b. Ahava said: To what can one compare a person who has sinned and confesses his sin but does not repent? To a man holding a reptile in his hand, for even if he immerses himself in all the waters of the world his immersion is useless for him. But if he throws it away, then as soon as he immerses himself in forty se'ahs of water, his immersion is immediately effective, as it is said: “He who confesses and gives them up will find mercy” (Babylonian Talmud, Ta’anit, 16a).

            A fortiori in the case of Cassif, who does not even confess his expressions. Even before the Elections Committee, and in his affidavit as well, there is no retraction of his words, nor a declaration that he has changed his path. The paltry statements that Cassif uttered do not come close to the vitriolic statements that he uttered from a public platform. On this it has been said: “He who covers up his faults will not succeed,” as opposed to “He who confesses and gives them up will find mercy” (Proverbs 28:13).

21.       The State of Israel, as a Jewish and democratic state, is obligated to defend itself and to act against those who oppose it. My colleagues defend Cassif, and it has, indeed, been said, “Judge your neighbor justly” (Leviticus 19:15). Relying upon the Gemara in tractate Sanhedrin, Rashi explains: “Judge your neighbor favorably”. However, the Siftei Chachamim [Shabbethai ben Joseph Bass (1641–1718)] adds: “That is to say, specifically when he is your neighbor judge him favorably”. In other words, when he behaves like your neighbor. In my opinion, there is no doubt that the terrible things said by Cassif do not allow us to judge him favorably, and they clearly and unambiguously meet the causes for disqualification that seek to protect the state against its destroyers and block their path to being counted among its legislators.

22.       To summarize this section, as noted, Cassif presented the core of his social and political approach in the interview with him and before the Committee, and his extreme, severe and unambiguous statements express dominant, central, core characteristics of his approach. We are concerned with persuasive, clear evidence that constitutes a “critical mass” that indicates support for armed conflict and terror against Israel, and negation of the existence of the State of Israel as a Jewish state. The force of the evidence is bolstered by the absence of clear, concrete repudiation of his statements by Cassif.

            In my opinion, all of the above unequivocally suffices to ground the causes for disqualification in sec. 7A in accordance with the criteria and proper interpretation as delineated above and that are long established by this Court.

 

EA 1876/19 In the matter of Balad

23.       Here too, as opposed to the view of my colleagues, I am of the opinion that that there is no room for doubt that the Balad list openly undermines the State of Israel’s existence as a Jewish and democratic state and openly supports armed struggle by a terrorist organization against the State of Israel.

24.       The evidence presented includes various statements and actions by members of Balad, some from the immediate past. Additionally, the petitioners requesting Balad’s disqualification referred to Balad’s activity in the past, and to the statements and actions of it former head – MK Azmi Bishara – and to the relationship between its activity and its current Knesset members to Balad’s former leader. In addition to all of that, it was argued that the “State of all its Citizens” bill (hereinafter: the bill) that the Balad Knesset members sought to present before the 20th Knesset last June makes it unequivocally clear that Balad expressly denies the existence of the State of Israel as a Jewish State.

            In this regard, and even were I of the opinion that no significant weight should be accorded to the other evidence to which I will refer later, I am of the opinion – like position taken by the President in para. 58 of her opinion, with which I fully concur – that no one can deny that the bill expresses a negation of “nuclear characteristics” of the State of Israel as a Jewish state. Presenting the bill crossed the line sharpened in the Tibi case, which distinguished between one who supports a “state of all its citizens” in the sense of achieving civil equality and one who seeks to negate the minimal, core characteristics of the State of Israel as a Jewish state. Moreover, after reviewing the opinion of my colleague Justice Mazuz, I would add that, in my opinion, not only does the bill express a negation of “the nuclear characteristics” of the State of Israel, as noted, but even denies the existence of the State of Israel as “the State of the Jewish people in the national sense”. This, in reference to the identity of the state as a place where the Jewish people realizes its right to self-determination, as my colleague so well expressed in his opinion.

            In order to understand the consequences of presenting this bill in regard to examining the disqualification of the list, I will expand somewhat on the prior proceedings in the matter of Balad.

25.       The matter of Balad was addressed in the elections for the 15th Knesset (EA 2600/99 Ehrlich v. Chair of the Central Elections Committee [33] (hereinafter: the Ehrlich case)), and in the elections for the 16th Knesset (the Tibi case), as well as in the elections for the 18th Knesset (the Balad case). Already in the Ehrlich case in 1999 – which addressed the matter of MK Azmi Bishara, who led Balad, along with the matter of the list (when the provisions of the law permitted only the disqualification of a list and not a candidate) – it was made clear that, on their face, Bishara’s statements at the time, declaring that the Jewish people does not have a “right to self-determination”, constituted a denial of the existence of the State of Israel as the state of the Jewish people. Indeed, it was ultimately found that Balad’s candidacy should not be disqualified despite coming “dangerously close” to the line that cannot be crossed that is defined in sec. 7A of the Basic Law.

26.       In the Tibi case (in the framework of which the matter of the party was examined in a manner identical to that of Bishara, given the “powerful” connection between them), it was found that the actions attributed to Bishara in regard to the negation of existence of the State of Israel as a Jewish state and in regard to support for armed struggle were at the heart of its purposes and constitute a dominant objective of its activity that constituted a political potential that was realized in repeated activity and with great force. However, persuasive, clear and unambiguous evidence against Bishara was not found, and thus not against the Balad list, when it was held that Bishara’s approach as to the State of Israel as a “state of all its citizens” “comes dangerously close to the possibility of negating the existence of the State of Israel as a Jewish state”, but it was not found that the “border had been crossed” (the Tibi case, p. 42). In addition. It was not found that there was sufficient evidence in regard to support of armed struggle, although there was some “doubt” in that regard (ibid.).

27.       Some clarification is required in this regard. In the Tibi case there was a difference of opinion as to the meaning of the phrase “a state of all its citizens” that appears in Balad’s platform. It was held that the principle of “a state of all its citizens” can take various forms, and that a purpose that sees Israel as “a state of all its citizens” does not inherently negate the existence of the State of Israel as a Jewish state. Thus, a person who acts to achieve the purpose of “a state of all its citizens” in the sense of guaranteeing equality among citizens is not the same as a person who employs that principle in order to infringe the rationale grounding the establishment of the state and thereby negates the character of the State of Israel as the state of the Jewish people (the Tibi case, p. 22).

28.       The minority was of the opinion that the evidence, taken in its entirety, showed that the expression “a state of all its citizens” served as a codeword for “abolishing Zionism, abolishing the State of Israel as the national home of the Jewish people, and abolishing the state as a Jewish state and replacing it with another state, if not more than that” (para. 2(b) of the opinion of Deputy President (emer.) S. Levin), and that striving for “a state of all its citizens” was intended to strip the State of Israel of Zionism and of its Jewish national character (para. D of the opinion of Justice E.E. Levi).

29.       As opposed to that, the majority, as noted, did not find that the meaning of “a state of all its citizens” in regard to Bishara “crosses the line” in regard to the negation of the existence of the State of Israel as a Jewish state. This, after finding that Bishara recognized the right of every Jew to immigrate to Israel, did not argue for the repeal of the Law of Return, did not deny the centrality of the Hebrew language as the language of the state, and did not oppose the holidays and symbols of Israel (also see: para. 54 of the opinion of President E. Hayut).

            In other words, in the Tibi case, as well, where it was found that striving for the objective of “a state of all its citizens” in regard to Bishara and Balad was close to the disqualifying boundary, a remedy was found in the form of non-negation of the core principles of the State of Israel as a Jewish state. The Court reiterated this position that the principle of “a state of all its citizens” in Balad’s platform does not ground a cause for disqualification in the Balad case. There, too, Justice E.E. Levy, dissenting, noted that in his opinion, the vision of Balad in regard to “a state of all its citizens” was nothing but a guise for the establishment of an Arab national state in all the territory of the Land of Israel.

30.       Thus, when examining the expression “a state of all its citizens” in the framework of Balad’s platform in the past, this Court was forced to cast about in order to discover what inhered in the concept and what meaning to give it. Where a doubt was found, the doubt worked in favor of approving the list, in view of the criteria established in regard to disqualifying a list. However, now that Balad has clarified – in the framework of dominant, significant, public and clear political activity – the significance of the expression “a state of all its citizens” for it, and the steps that it is willing to take in order to realize that vision, it can no longer be said that we are concerned with an ambiguous term. Now, following the presentation of the bill, it has been made absolutely, unambiguously clear that for this list “a state of all its citizens” means annulling the principle of return, denying the principle by which the state’s primary symbols reflect the national revival of the Jewish people, and denying the Hebrew language as the primary language of the state. It cannot now be said, by any criterion, that we are not concerned with the negation of minimal, nuclear elements of the State of Israel as a Jewish state, as held in the Tibi case.

31.       The fact that the bill was ultimately not brought before the plenum – only because on June 4, 2018 the Knesset presidium decided upon the drastic step of not approving its presentation to the Knesset – cannot be accounted to the list’s benefit, which argues that it is being retaliated against merely because it raised a theoretical “idea”. We are not concerned with just an “idea”, but rather with a concrete act – submitting a bill that sought to ground principles that undermine the existence of the State of Israel as a Jewish state (and also see in regard to expression by means of submitting a bill: the second Neiman case, p. 196). In view of this bill, I also find problematic the claim by the Balad list in its appeal that the requests for disqualification were not based upon a clear, direct statement, its publications, or official notices. What is a bill if not a “clear, direct statement” that expresses the values of the list and the principles that it pursues in the most simple, “clean” manner? What need do I have in looking for publications, official notices and so forth given the submission of a bill that seeks to undermine the most nuclear foundations of the state as a Jewish state? MK Mtanes Shehadeh’s “excuse” in his affidavit (affidavit of March 3, 2019 that was presented to the Elections Committee) that the bill was submitted only to “challenge the Nation State Basic Law and to hold a public debate on the issue” changes nothing in this regard or “kosher” this clear public step. On the contrary, even if the bill was submitted out of a sense of anger and grievance, I do not see how that could act in the list’s favor. Even if the members of the list presented the bill in a moment of rage, the saying goes: “By three things may a person's character be determined: By his cup, by his purse, and by his anger” (Babylonian Talmud, Eiruvin 68b). Rashi explains there: “In his anger – that he is not too hot tempered”. It is precisely when one is roiled and angry that a person is judged, and not when he is calm and at ease.

32.       Under these circumstances, no weight can even be given to what is stated in the affidavit that Shehadeh submitted to the Elections Committee that he and the members of Balad are committed to the principle of “as state of all its citizens” as reflected in the in Balad’s platform that was examined and approved long ago by this Court.  Balad itself clarified – in its own voice and not in the framework of quotes from newspaper articles that may be given to different interpretations – in the petition that it submitted to the Court (HCJ 4552/18) that the bill was consistent with its platform. In this sense, the claim that Balad now adheres to the platform that was examined and approved long ago – before the true nature of its vision of “a state of all its citizens”, which was recently publicly clarified and expressed as noted by Balad – cannot be accepted.

33.       That being the case, and in view of the background detailed above, I am of the view that there is no alternative but to say that by presenting the bill, and certainly in filing the petition (HCJ 4552/18) by members of Balad in which it was made clear that the bill was consistent with Balad’s platform, the Balad party crossed the line to which it had come “dangerously close” more than once in the past. In this context I would note that presenting the bill was an expression of real, substantial, clear parliamentary activity that, in my view, cannot be dismissed as a one-time or sporadic matter, as is the opinion of my colleague Justice Amit.

            The argument presented by Balad’s attorney that the matter of the bill was not raised before the Elections Committee but first and unexpectedly in the position of the Attorney General submitted to this Court, and that he is therefore unprepared to address it, cannot be accepted. Not only was this matter expressly raised in the framework of the disqualification request presented to the Elections Committee (paras. 17-24 of the Likud faction’s request to disqualify Ra’am-Balad), and not only was it raised in the hearing before the Elections Committee (p. 4 of the transcript of the hearing of the Elections Committee of March 6, 2019), but it was also addressed on the merits by Balad’s attorney, who raised the same claim made in that hearing that he raised before us that this is retribution merely for raising an “idea” (p. 35 of the transcript off the hearing before the Elections Committee of March 6, 2019). Moreover, the Ra’am-Balad list also expressly referred to the matter of the bill in the appeal that it submitted to this Court (paras. 23-25 of the appeal in EA 1876/19).

34.       In any case, beyond the fact that submitting the bill (together with what was stated in the petition) significantly and unambiguously grounds the said cause for disqualification, this bill does not exist in a vacuum. The bill is not the only evidence under consideration, although it would appear to be decisive evidence in and of itself. Additional evidence was presented that when added together points to a collection of evidence and a “critical mass” that demonstrates that we are concerned with a list that has raised the banner of open struggle against the foundations of the State of Israel.

35.       In this framework I would note that I do not believe that the fact that Balad’s activity and members were examined in the past renders addressing them now superfluous. Are we not required to examine the matter of Balad in accordance with the up-to-date material presented to us, which also casts light upon what was presented in the past? When the matter of Balad was examined in the past, the Court had before it the material that had accrued up to that date. Given that additional evidence has accrued in the interim, which might have led the Court to a different conclusion at that time, we cannot continue to rely upon conclusions drawn in the past from the material presented then while ignoring the updated material.

36.       Given the above, an examination of the entirety of the evidence in the matter of Balad and its members shows that this time it has gone too far. Even if in the past, the material presented in regard to it and its members came close to the bounds defined in the Basic Law but did not cross them, today the situation is different. Indeed, this Court found that MK Zoabi’s participation in the Marmara flotilla did not disqualify her from standing for election to the Knesset (the Zoabi case). However, I believe that weight should be accorded to her actions in examining the disqualification of the list of which she is a member (even if not in a “realistic” place), and in view of the additional evidence that has accrued in regard to that list since the Zoabi case. This is also true in regard to the Bishara matter, which was addressed in the past in the Ehrlich case and the Tibi case. Only later, as was also noted in the matter of Balad (in which the matter of Bishara was not addressed as he had left the country), it became clear that Bishara was suspected of serious security offenses pursuant to which he was forced to flee the country. Therefore, in examining the current evidentiary foundation in regard to the list in its entirety, weight should also be given to this matter (even though Bishara no longer stands at the head of the party). In view of the above, can one imagine that if the matter of Bishara were examined after new material came to light that pointed to serious suspicions of committing offenses, this Court would rely upon its findings in the Ehrlich case and the Tibi case without examining whether the new evidence added to the material that was examined and remained in “doubt”?

            The actions of those has since been compounded by the criminal-security related activity of MK Basel Ghattas, a member of the party who was convicted in 2017 of smuggling cellphones and other items into a prison in which security prisoners were held, as well as the conviction of another MK who was a member of the party, Said Naffaa, for the offense of contact with a foreign agent in 2014, after meeting with the deputy secretary general of the Popular Front (see the denial of his appeal in CrimA 6833/14 Naffaa v. State of Israel [34]), which was not considered in the past in the matter of the entire party.

37.       Added to all of that was the connection affirmed by Balad to its erstwhile leader Azmi Bishara in the course of the annual convention of the Ra’am-Balad party in Nazereth, when it deemed it appropriate to send him a “blessing”. And note that it was made clear to the Elections Committee that this matter was not denied (pp. 29-32 of the transcript of the Elections Committee hearing of March 6, 2019). By that, the present Balad list also declared that it is the successor of the person who led it in the past. It should be emphasized that we are not concerned only with a relationship with Bishara that justifies disqualifying the list (compare: the Balad case, para. 20), and I am not unaware that of the list’s argument that it cannot be held responsible for the actions of MK Naffaa, who has not been a member of the Balad party since 2010, or the actions of Zoabi, who is in an “unrealistic” place on the list. We are concerned with an aggregation of additional, compounded evidence over the course of years that indicates a significant, persuasive, and unambiguous tapestry in regard to meeting the causes of disqualification. An additional connection to Bishara was also presented in the article in the Ha’aretz newspaper of Aug. 18, 2014, according to which then members of the list – Jamal Zahalka, Hanin Zoabi, and Basel Ghattas – met with Bishara in Qatar, which was not denied by Shehadeh (pare. 8 of Shehadeh’s affidavit to the Elections Committee). To all of this is added the current conduct of the members of the list in the form of giving unambiguous, blunt support for terrorist actors who were convicted and incarcerated, whom the current head of the list, MK Shehadeh, refers to as “political prisoners” (article in the Makor Rishon newspaper of Jan. 13, 2019). This is compounded by unambiguous statements in a recorded interview (on Galei Yisrael radio) in the course of which Shehadeh stated in his own words that “every struggle against the occupation is legitimate” and that “we support every popular struggle”.

            Thus, the entirety of the clear, unambiguous evidence – together with the most significant piece of evidence concerning the submission of the bill – shows that the dominant characteristics at the center of the list’s parliamentary and extra-parliamentary action are directed at infringing protected values. The list vigorously acts to realize its objectives through actions and verbal statements.

38.       Under these circumstances, the list’s argument that part of the evidence concerns persons who are no longer candidates of the Ra’am-Balad list for the elections to the 21st Knesset can be of no assistance. The candidates of the 21st Knesset sought, of their own initiative, to join a list that has a “rich” past as detailed above. We are concerned with people who seek to join an existing list based upon the “reputation” that it has acquired, the ideology that is its banner, its purposes and actions that were expressed on various public platforms, and of course, its supporters. The candidates’ distancing themselves from the action of that list – at least in regard to the matter of the bill that was submitted during the term of the 20th Knesset – cannot be accepted. Beyond the fact that evidence was presented that indicates a real connection to its erstwhile leader Bishara, we cannot countenance the argument that the current members of Balad do not stand behind Balad’s platform that Balad itself declared in the 20th Knesset was consistent with what was stated in the bill that was submitted. The claim that we are concerned with “a new generation” cannot be accepted when it concerns the disqualification of a list regarding which clear, unambiguous evidence was presented regarding the meeting of a cause for disqualification.

39.       According to the position of the Attorney General as expressed before us (in sec. 44 of his written position as well as in the oral arguments – despite the fact that he said absolutely nothing on this matter in the written position presented to the Elections Committee), there is nothing in the bill that would lead to the disqualification of the entire list because we are concerned with a joint list of Ra’am-Balad and not of Balad alone. In my opinion, the Ra’am-Balad list cannot be approved for this reason alone. It is difficult to accept the argument that the existence of a cause for disqualification can be “healed” by joining one list to another in a joint list. In view of the purposes of sec. 7A of the Basic Law, the combining of lists cannot confer “immunity” or a defense to a party that has deviated from the path. This, while undermining the fundamental principles defined in the framework of the Basic Law, is not repaired by adding a party. The Sages taught us the principle: “Woe to the wicked person and woe to his neighbor,” and “Blessed is the righteous person and blessed are his neighbors,” which is derived from the arrangement of the Israelite encampment in the desert. Thus, the tribe of Reuben, which encamped beside the members of Kehat, was punished with them in the dispute with Korach and his followers, while the tribes of Judah, Issachar, and Zebulon, which encamped beside Moses, Aaron and his sons, became great Torah scholars (Numbers 3:29 and Rashi ad. loc.). If that is so for the arrangement of an encampment and the placement of neighbors, all the more so when we are concerned with a party joining with another. Joining together is premised upon a shared ideological, political, and conceptual platform. As the prophet Amos said: “Can two walk together, unless they are agreed?” (Amos 3:3). We cannot accept the argument that if there is a cause for the disqualification of the Balad party, the very joining of Ra’am suffices to remedy it. The joining of the Balad party with the Ra’am party does not purify it, but rather it contaminates the Ra’am party that tied its fate with it in a joint list. The “pure” does not purify the “impure”, but rather the “impure” corrupts the “pure”. It would be better were parties to act cautiously when choosing to join parties whose extremist course is on the boundary (and certainly when it crosses the boundary) defined in the Basic Law.

            To summarize, in my opinion, both in the matter of Cassif and in the matter of the Ra’am-Balad list, “all else has failed” even according to the strict criterion of my colleague Justice Sohlberg.

40.       In conclusion, my colleagues’ interpretation in regard to the disqualification of a single candidate and in regard to the disqualification of a list on the cause of support for armed struggle against the State of Israel and the cause of denying the existence of the State of Israel as a Jewish state render the words of the legislature merely theoretical. The Talmud (BT Sanhedrin 71a) addresses the elements of the offense of an individual – the stubborn and rebellious son, and of a group – the idolatrous city, which have committed certain offenses. However, the Tannaim interpreted the elements of the offenses so rigidly that that the Talmud concludes: “There never was and never will be a stubborn and rebellious son. And why was it written? So that you may expound upon it an receive reward”, and: “There never has been an idolatrous city and there never will be one. And why was it written? So that you may expound and receive reward” (a similar expression also appears in regard to Job, of whom it was said: “Job never existed and was never created, but was a parable” (BT Bava Batra 15a). However, alongside this view we find the view of Rabbi Yochanan, who was of the opinion that these were not merely theoretical matters, and who states in regard to the stubborn and rebellious son, “I saw him”, and in regard to the idolatrous city, “I saw it”. We are concerned with practical matters that were and will be in the future. By analogy, the above is applicable to the matters before us, as well.

            And so I say loudly and clearly: “I saw him,” “I saw it,” and we cannot turn our eyes away from seeing.

 

Justice G. Karra:

            I concur in the opinion of President E. Hayut and with the opinions of my colleagues U. Vogelman, I. Amit and E. Baron on the matter of the inapplicability of the probability test to the cause of disqualification for incitement to racism under sec, 7A(a)(2). I would add that the accumulated critical mass of statements and actions detailed at length in the President’s opinion thoroughly ground the conclusion that incitement to racism is a dominant, firmly rooted, and central purpose of Ben Ari’s doctrine. The escalation of racist statements over the last years leaves no possibility for accepting his artificial explanations, not even to the extent of raising doubt as to the intention and purpose of the statements.

            From among Ben Ari’s racist statements and actions, I would like to spotlight a dark, severe act mentioned in para. 44 of the President’s opinion, that is lost in the large catalogue of his inciteful publications. I refer to the act of tearing up the New Testament and throwing it into the waste basket when Ben Ari was serving as a member of the Knesset in the years 2009 to 2013. It is an act that has nothing to do with incitement against Arabs, but it serves to show us that Ben Ari’s racist worldview, which he has espoused over the course of years, is much broader and deeper than incitement against Arabs, whom he sees as enemies. It would appear that this racism is deeply rooted in hatred of the “other” and the different, per se.

            Approving the candidacy of a person who incites to racism and hatred of the other would taint Israeli democracy, and therefore, a normative statement is required saying that such an inciter must be relegated from the Israeli Knesset.

 

Justice N. Hendel:

  1. I concur in the clear, comprehensive opinion of my colleague President E. Hayut. I would briefly sharpen what I see as the main points in regard to each of the actors – candidates and lists – examined in the present proceedings, regarding which there are disagreements among the members of this panel. I will also present my position on a number of general issues regarding which questions or doubts were raised – the probability test, the consequences of two parties running jointly in regard to the existence of a cause for the disqualification of one of them, and the interpretation of the cause “denial of the existence of the State of Israel as a Jewish and Democratic state”.

The relationship between law and elections can be likened to two pillars. One pillar says: “This is democracy’s holiday. An equal vote for every citizen. The people must have its say. The Court does not – and must not – take a stand as to the desired results”. The other pillar says: “Elections without law may distort democracy. Not a day of celebration but of mourning. Bribery, bullying, or a regime takeover of the elections. The answer is the open eyes of the law as written, expressed, and intended. There must be rules even for the smallest details: the timeframe must be strictly observed; the ballot box must be accessible; who can vote and who can be elected. Maintaining the laws is also vital to democracy”. While the first pillar maintains a distance between the law and the elections, the second requires involvement and supervision. Is there a contradiction between the two? I believe that the answer is in the negative, and it is unsurprising. The two pillars sing the praises of democracy together. In other words: there is no contradiction between democracy and the Court’s supervision over the rules. On the contrary, the Court acts to advance democratic principles by virtue of the authority conferred upon it by the legislature.

            Democratic elections are not self-evident. History gives context. In the past, and for a very long period, change of regime was achieved by military coup or the death of the autocratic ruler. Democracy changed the rules. Not power but election. Decisions are made not by the powerful but rather every citizen has equal power. That is the aspiration, and it must strictly be put into practice. It is not a simple task. After all, the voice of the single voter is not, of itself, strong in comparison to the regime. Democracy strives to preserve its character and not lose it in the course of elections. This gives rise to the role of the Court and the proximity of the pillars.

  1. Israeli law establishes when a candidate or a list should be prevented from participating in the elections due to their objectives, actions, and expressions. Section 7 of Basic Law: The Knesset presents the substantive test and the procedures for preventing a list or candidate from participating in elections for the Knesset. This section, and section 63A of the Knesset Elections Law [Consolidated Version], 5729-1969, establish the procedures for this. The substance is defined by three causes for disqualification:

 

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

The procedures are that when the Central Elections Committee for the Knesset Elections prevents the participation of a candidate, the approval of a nine-judge panel of the Supreme Court is required. It is not an appeal but an approval proceeding. The law chose to introduce the Court into the proceedings. It is not post facto judicial review but an ex ante decision. For the prevention of the participation of a list or the approval of a candidate of a list – there is an appeals process.

We addressed the tension between the two pillars presented. Each holds great power in our legal system, and thus the sensitivity required in the course of moving between them in practice and in real time. The path chosen by this Court is one of caution and self-restraint before it prevents the participation of a candidate or a list. Doubt acts in favor of the candidate. This is the consistent approach of the case law in election matters, as explained by my colleague the President. It is interesting to turn to another area of law in which doubts wields great power. In criminal law, a person can be convicted if the charge is proved beyond reasonable doubt. The reason for this is the recognition of the regime’s power to taint and punish the individual. As opposed to this, in Knesset elections, the power of doubt lay in a different consideration – the role of the voter in choosing the candidate and the list it prefers. This Court does not eagerly intervene in election matters. On the other hand, the law requires it to do so in the appropriate circumstances. Just as the will of the electorate must be honored, so too the will of the legislature in such matters. The compromise – or more precisely, the proper balance – is to employ the law only to prevent candidacy in exceptional cases in which, for example, the doubt is not of substance and is not rooted in reality. This rule is intended to permit the voter to express its position on the matter within the four cubits of the ballot box. As opposed to criminal law, in which the court establishes facts in regard to the defendant’s acts and intentions – in the present matter, we look not only backward but forward as well: is the candidate or the list, at the time of the elections, expected to act contrary to the causes enumerated in the law if elected – but in the present and not necessarily in the past. We are thus concerned with a certain evaluation in regard to the future.

However, in the exceptional case in which the candidacy of a candidate or a list meets the following criteria: the cause is a dominant characteristic of the list or the candidate; there is clear, unambiguous evidence of the cause; there is active conduct, including expression in the case of a candidate, for realizing the wrongful objectives; there is a critical mass of highly credible evidence (see the detailed description in para. 16 of the opinion of my colleague the President). Only if these conditions are met is there the necessary certainty to justify the result of disqualification. In the background stands the right to vote and to be elected. That underlies the democratic foundation of elections. And note that the right to be elected has direct consequences for the right to vote.

Another aspect of the matter is remorse or a candidate’s recanting an objective or activity related to one of the constitutional causes. The reason is self-evident. The decision is not personal or punitive but rather institutional and preventative. In other words, its purpose is to prevent an inappropriate actor from becoming a member of the next Knesset. Of course, we are not concerned merely with a declarative test. There must be an examination of whether there are grounds to conclude that the declaration is sincere. Or more precisely – that the declaration is not sincere. Of course, there is a possibility that a candidate may not live up to his declarations. This is not a danger that would justify expanding the list of disqualified actors. If a candidate or list does not live up to its expectations, there are “sanctions” and other means for contending with the matter, whether in the course of the Knesset’s term or in the elections for the next Knesset.

3.         Two points to conclude the general sections. The first concerns the dissenting opinions of my colleagues. I have read the opinions of my colleagues Justice N. Sohlberg and Justice D. Mintz. My colleague Justice Sohlberg is of the opinion that no one should be prevented from participating in the elections for the 21st Knesst, while my colleague Justice Mintz is of the opinion that along with Michael Ben Ari, Ofer Cassif and the Ra’am-Balad list should be prevented from participating in the elections for the Knesset. In my opinion, and pursuant to the above, Justice Sohlberg’s approach might lead to the non-disqualification even of candidates who clearly meet the causes for disqualification. This, while making even the strict case-law tests weighed prior to preventing the participation of a candidate or list in the elections more strict. As for the approach of my colleague Justice Mintz, in my view, his approach might lead to over-disqualification of candidates and lists from both sides. It would appear to me that the path taken by the case law in the past and in the present embraces both of the pillars presented above. Disqualification is imposed cautiously and only exceptionally.

            The second point is that of the symmetry test. My colleague Justice Sohlberg presented a statement by MK Michael Eitan in which he asks: “Where is the symmetry?” I agree with this question and would only like to sharpen the point. Symmetry does not have to be expressed in the final result, but rather in the application of equal criteria. Aspiring to symmetry in order to balance the results is a quasi-political consideration that the Court cannot adopt. I will allow myself to say that reading the opinions of my colleagues – of the majority and the minority – shows that the conclusions were based upon a legal approach and the examination of the evidence, and not upon any desire to maintain equally balanced results.

            Armed with these tools, I will conduct an individual examination of the relevant actors – Michael Ben Ari, Ofer Cassif, and the Ra’am-Balad list.

4.         Michael Ben Ari: The relevant cause in the matter of Ben Ari is “incitement to racism”. We are concerned with some forty different statements, most of which were uploaded to the Facebook page of “Otzma Yehudit with Michael Ben Ari”, such that the matters cannot be denied. Indeed, Ben Ari does not deny them. Most of the material dates from the year preceding the elections. My colleague the President presented the relevant statements (paras. 38-41 of fer opinion). It makes for difficult reading. What was presented suffices, and there is no need to present it again, Comparing the statements with the language of the law raises the question of what is the test for “incitement to racism”?

            I will begin with the term “incitement”. Not racism but incitement to racism. The hand or mouth of one and the hearing ear of the other. In other words, we are not concerned with personal views that the candidate keeps to himself. The opinions must be expressed in order to incite to racism. In addition, my colleague Justice M. Mazuz referred to the probability test. In his opinion, that test should not be applied to the causes under sec. 7A of Basic Law: The Knesset. I agree with his conclusion and reasoning. The language does not support the application of such a test, and such is also the purposive interpretation. Such a test would be too speculative and very difficult to apply at the time of the elections. Additionally, the basis of the causes for disqualification is not necessarily the prevention of a real, concrete threat to one of the protected values, but rather clearly expresses not granting legitimacy to lists or candidates who adopt the approaches set out in the causes. In summary, I accept his conclusion that “we are concerned with causes of ‘conduct’ not ‘results’” (para. 2 of his opinion).

            Now to the question of what constitutes “racism”. My colleague the President addressed, inter alia, the aspects of hatred, hostility, persecution, degradation, and humiliation (paras. 25-32 of her opinion). In regard to Ben Ari’s candidacy, I will say: there is no need to establish the minimal threshold for disqualifying a candidate on the basis on incitement to racism. It suffices to find that in this case, the candidate exceeded the threshold by a wide margin. His statements seek to influence conduct. And note that the lack of a need to prove the elements of the probability test does not contradict the fact that the aspiration to influence conduct in practice reinforces the ground for disqualification. In his statements, Ben Ari espouses the denial of civil rights to the Arab public. So in regard to participating in public tenders and so in regard to their ability to live in cities. He supports their collective deportation in certain circumstances, and employs violent imagery in regard to that community, including shooting. The evidence is very substantial, unambiguous, and dominant in his doctrine.

            In his affidavit to the Elections Committee, Ben Ari argues that he is not a racist, in that he accepts that every person – including the Arabs – are created in God’s image. Only then does Ben Ari proceed to the loyalty test. He is not against Arabs because of how they were born, but because they failed the loyalty test. Moreover, the overwhelming majority of Arabs are not loyal. That “overwhelming majority” was defined in various statements: from 99% to a few who can be counted on the fingers, and Ben Ari never met a loyal Arab. Thus, they have all become enemies. This is the fallacy at the base of incitement to racism. As President Shamgar held, racism is not just a matter that derives from the biology of the other (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11th Knesset [5], 191-192). Racist views can also be examined in accordance with theories, conclusions, and factors that arose after a person’s birth and not upon the DNA that characterizes a group of the population. Not just genetics but epigenetics. Ben Ari did not explain the meaning of the “loyalty test” – what are the criteria of this test, when does one fail it, and how is it that with the exceptions of a very small number of individuals, all Arabs belong to the disloyal group. We are concerned with very severe matters that are not based upon facts but upon a circular conclusion. The results are harsh. An Arab is presumed to be an enemy who must be dealt with. This, by means of denial of rights, deportation, or the possibility of violent treatment. For example, it was stated that anyone who dares to speak against a Jew doesn’t live. He doesn’t live, but rather “a firing squad kills him, he is done away with”; that the “murderers” should not be employed, also in reference to the Arab residents of Israeli cities; that affirmative action should be rescinded in view of the “treasonous” and “murderous” character of Arabs; that Arabs are a “murderous people, a murderous nation”; and that the village from which a terrorist went to an “airport” should be uprooted and its residents “flown” to other countries.

5.         I will clarify the matter from another perspective. One may ask why these particular causes established in the law were chosen. The cause of support for armed struggle against the state is clear and requires no explanation. The cause of denial of the State of Israel as a Jewish and democratic State was intended to defend the existing foundations of the state. As for incitement to racism, we are concerned with a desire to deny the legitimacy of a group. In a varied, multi-group society like that of the State of Israel, this harms the nature of the society. This is striking when we are concerned with some twenty percent of the population. It saddens me to say that reading Ben Ari’s positions – and the reader can read paras. 38-41 of the opinion of my colleague the President – leads not only to racism in the form of humiliation and hatred, but also to severe acts that might undermine social order or create discriminatory law in regard to the foundations of civil rights, including the right to remain a citizen of the state. This is not due to the actions of the group, not due to criminal offenses perpetrated or plans to do harm, but because they do not meet the conception of a proper minority as Ben Ari understands it. By that, I am not finding that he has committed a crime, but there are special requirements in regard to lists and candidates for the Knesset. Particularly in a system in which a representative often represents a specific group, we must make certain that even if he does not fight for the rights of the group, he cannot fundamentally deny the legitimacy of the other group and its right to elementary rights. And all the more so, harm and violence lacks any legitimacy.

6.         The conclusion from all of the above is that this is an unambiguously extreme case. And note well, Ben Ari did not express remorse, but rather embraced his position while explaining that he is not a racist and does not reject Arabs on the basis of their birth. To clarify the picture, let us compare him to Advocate Itamar Ben Gvir and to former candidate Baruch Marzel. It can be assumed that the three share a similar ideology, in that they ran together on the same list. However, this Court refrained from disqualifying Marzel and Ben Gvir. The decision not to disqualify Ben Gvir in these proceedings was unanimous. What difference is there between him and Ben Ari, who was disqualified by an eight-judge majority? It would appear that the tests of the strength of the evidence, its extent, quality, and unambiguity led to that result. But we would note one additional criterion: expressing remorse. Both Marzel and Ben Gvir informed the Court that they intended to act in accordance with the requirements of the law, including the causes for disqualification that it establishes. Even if they behaved differently in the past, they declared that that is how they would conduct themselves. They understood and internalized the qualifying conditions for Knesset candidacy. Ben Ari was not a partner to that choice. He continues to support the views that he expressed. We are not concerned with some technical defect or lack of comprehension. Just as we must respect the manner in which Ben Gvir and Marzel presented their arguments at the moment of truth, so we must respect Ben Ari’s position that justifies his disqualification. My colleagues spoke of how, due to its history, the Jewish people in particular must be sensitive to statements like those expressed by Ben Ari. In my view, we should add that it is not just the history of the Jewish people, but also its faith.  But truth be told, there is no need for that. In these circumstances, there is not even a need to demonstrate the matter by a thought experiment in which Ben Ari would express his views in another country against Jews.

7.         Ofer Cassif: The disqualification request points to two causes that can bar his participation in the Knesset elections. The first is “negation of the existence of the State of Israel as a Jewish and democratic state” and the second is “support for armed struggle by a hostile state or a terrorist organization against the State of Israel”. The evidence presented against him relies upon four publications, the central of which is an interview he gave to the Ha’aretz newspaper in February 2019. It would appear that my colleague Justice Mintz addressed both causes together, but there is a difference in the scope of the evidence and in Cassif’s explanations in regard to each cause, which requires that they be addressed separately. My colleague presented Cassif’s case as so clear as to leave no doubt, and according to his approach, there is no possibility of arriving at a different result.

            Below, I will sketch the general outline of why I hold a different view. The question in regard to Cassif, as for every candidate, is whether there is justification for preventing him from being elected as a member of Knesset in view of the causes established in the Basic Law. As I explained above, the matters are examined in a particular period of time, with a view to the future, and in regard to the candidates functioning in the legislature if he be elected. Past statements and actions may serve as the evidentiary foundation in regard to a position in the present and in the future. The purpose is not to punish improper actions and statements, but to ascertain whether the candidate constitutes an exception that justifies barring his participation in the elections. Cassif said things in the past, although not with great frequency and consistency, that would require him to explain why he should not be prevented from participating in the elections. Cassif’s answer to this is clear, consistent, and divided into three parts: one, in regard to the possibility that he supports armed struggle by a terrorist organization against the State of Israel, is that he does not support violence, not in the past and certainly not at present. I believe that an examination of the matter, as I will explain, supports that conclusion. Even if Cassif spoke harshly, there is a lack of a foundation proving that he supports violence – certainly the foundation needed to prove that he supports armed struggle by a terrorist organization against the State of Israel.

            The second part of his answer concerns the possibility of negating the State of Israel as a Jewish and democratic state. In this regard, he does not deny that he has made statements in the past against various symbols of the state and against the Law of Return, but he declared that he accepts the platform of his list – Hadash-Ta’al – and does not, in that or any other frameworks, act or call for the annulment of the symbols or the Law of Return. He accepts the parliamentary rules. In other words, not only is this not a case of a dominant purpose, but rather there is no such purpose at all. As I explained above, the Court has consistently granted weight to a change of position and a declaration in regard to an absence of intent to act or express oneself contrary to the causes enumerated in Basic Law: The Knesset. As noted, this consideration, applied mutatis mutandis to other causes, is what allowed the candidacy of Baruch Marzel in the past, as well as that of Itamar Ben Gvir at present. It his unwillingness to follow that path that stands in Ben Ari’s way.

            The third part concerns various statements by Cassif that compare the State of Israel and the members of its government to Nazi Germany. My colleague Justice Mintz gave weight to those statements. We are concerned with shameful statements that do no honor to one who makes them, and certainly not to one who seeks election a member of Knesset. It were better had they never been said, and one hopes that if Cassif is elected to the next Knesset, he will refrain from acting in this manner. However, as my colleague the President noted in her opinion – and this is the third part of Cassif’s response – those statements do not fall within the scope of any of the causes enumerated in sec. 7A, and to my understanding, the Court cannot take them into account in examining the disqualification of a candidate. In this regard, I would note that the opinion of my colleague Justice Mintz also referred to Cassif’s statement in his affidavit (para. 13) that he would “not necessarily use those expressions if elected to the Knesset” (emphasis added). According to his approach, the absence of an undertaking by Cassif in regard to his future conduct does not work in his favor. However, and see paras. 12 and 13 of the affidavit, it appears that this statement referred to the shameful statements mentioned above, and not to statements related to the causes enumerated in the law, such that I do not think that this can be held against him in this proceeding.

            In view of the severity of the cause of supporting armed struggle by a terrorist organization against the State of Israel, it would be proper to present Cassif’s own words as stated in his affidavit to the Elections Committee. He affied that “I have never called for violence, and I am opposed to violence as such against any person”. As my colleague the President noted, Cassif explained to the Elections Committee that “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence […]” and stated further on that “I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all”. In regard to the definition of the term “terror” as opposed to “guerilla warfare” in all that concerns harm to soldiers, Cassif’s attorney emphasized in the hearing before us that the statements were made in the course of an academic debate on the subject and that one should not infer that he expressed support for harming soldiers from the presentation of his position in the matter:

He said that he has a dispute with the term “terror” even in the UN there is a dispute about this word. He wrote this and teaches his students. The dispute about the Prevention of Terror Ordinance then was a debate. Therefore, what he says about this matter of who is or isn’t a terrorist from an intellectual and academic perspective is debated […] these terms that he employs are not foreign to the Supreme Court and not to the international humanitarian court. Not one word here is a call [to terror] (p. 9 of the transcript).

            Even if one does not agree with the definitions adopted by Cassif, and even if they cause indignation, in the context presented to us they cannot be taken to imply, of themselves and certainly not given the entire collection of statements and explanations, support for armed struggle by a terrorist organization against the State of Israel. It is sad that his words show, in my opinion, a certain sense of contempt for the lives of IDF soldiers and complacency in regard to many citizens who have lost what was most dear to them in the name of defending the homeland. In such matters, a member of Knesset and a candidate for election as a member of Knesset is expected to act with sensitivity. But there is a gap between such a failing and the existence of a cause to prevent participation in the elections.

            In summation, I would say as follows. In my opinion, there is no basis for attributing to Cassif statements that support armed struggle by a terrorist organization against the State of Israel or the negation of the existence of the State of Israel as a Jewish and democratic state. As noted above, there are four conditions that must be met in order to bar a candidate from participating in the Knesset elections: the cause for disqualification constitutes a dominant feature; the existence of clear, unambiguous evidence of the existence of the cause; activity, including expression, for the realization of the wrongful purposes; a critical mass of highly credible evidence. In my opinion, there is no basis for attributing to Cassif expressions of support for armed struggle by a terrorist organization against the State of Israel. He made it clear that he always was and always will be against violence. As for his positions on the symbols of the state and the Law of Return, he declared that he abides his party’s platform. In regard to both causes, the evidentiary foundation is sparse, certainly not unambiguous, and lacks the requirement of dominance or activity for the realization of the purpose. In other words, both independently and cumulatively, the evidentiary foundation against him does not meet the four tests.

8.         Ra’am-Balad: The proceeding in the matter of the Ra’am-Balad list focused upon the Balad party. It is argued that the central piece of evidence for disqualifying the list in these elections is the Basic Law: A State of all its Citizens Bill that Balad sought to propose to the 20th Knesset. The bill was submitted to the Knesset presidium, but that body did not approve its presentation before the Knesset.

            The bill was of a general character. For example: “The state is a state of all its citizens, in which the regime is democratic; the state’s regime is based upon the values of the dignity of the person, his liberty and his being an equal among equals”. There is also reference to the language, the symbols and the anthem, which will be in the same spirit. It is argued that the positive implies the negative, that is, that the practical significance of this bill is the revocation of the Law of Return and changing the symbols of the state and its anthem such that they would not express its being Jewish but only democratic. Taking this step carries some weight. It is more forceful than a newspaper interview, for example. It is parliamentary activity that can bear fruit. The list’s attorney argued that the bill was a sort of “gimmick” in response to Basic Law: Israel – The Nation State of the Jewish People. This argument, in itself, is insufficient. The bill refers to the negation of the State of Israel as a Jewish (and democratic) state, and even if some party or other is frustrated as a result of the activity of the government and the Knesset, it is not exempt from the requirements of the Basic Law. However, the submission of the bill must be examined not just on the legal level but on the factual level. To be more precise, the factual level constitutes a central part of the legal examination. Thus, the party’s conduct in regard to the causes under the law must be examined in accordance with the strict rules. From that perspective, the bill, by itself, does not cross the necessary threshold. First, as already stated, one of the conditions is that of dominance in the purposes and active conduct. It was not argued that the bill also appears in the party’s platform. Second, the bill is signed by the Knesset members who served at the time, some of whom are no longer candidates in the current list, and others are place only symbolically. Thus, for example, MK Hanin Zoabi was placed in the 118th spot on the list. In regard to the candidates who appeared before us and who are placed at the top of the list, it turns out that they do not support that position. Their attorney even referred to the bill as a kind of mistake. And again, the matter must be examined according to the relevant tests. It would not appear that the desire to annul the anthem, the law and the symbols is dominant, or that they are actively working in such a manner, in particular in regard to the figures who currently represent the list. On the contrary, those positions are not part of the party’s planned parliamentary activity. Not just remorse, but a lack of devotion to the purpose, and conduct at a very specific time. Were the list continuing in that conduct – since the Law of Return remains in force – the situation might be different. But that is not the situation before us.

            From reading the opinion of my colleague Justice Mintz, it appears that he does not agree with the reasoning of the majority. He expanded upon the subject of the party’s conduct that was addressed in the case law in the past, in regard to previous Knesset elections. Of course, one can be of this or that opinion in regard to decisions rendered in regard to previous Knesset elections, but it does not appear that at present, significant weight should be attributed to conduct that this Court already decided was insufficient to prevent the party’s participation in the elections. Thus, the focus is upon the new material, and that is what I addressed.

            My colleague Justice Mazuz is of the opinion that the term “Jewish state” in the context of Basic Law: The Knesset should be understood as referring to the identity of the state in the national sense. In other words, it does not necessarily refer to a change of the internal content, like the state’s symbols. In my view, it would be incorrect to construe the term “Jewish state” as a test of the right of the Jewish people solely to national existence for three reasons. First, the term “Jewish” is not merely a geographical matter, but an historical one as well. The state’s symbols carry weight in the basic definition of the state. So it is in regard to other states as well. Second, the case law has also adopted this view in the past (see, e.g., EDA 50/03 Central Elections Committee v. Tibi [35], 21-22, according to which “the ‘nuclear’ characteristics that shape the minimal definition of the state being a Jewish state…the right of every Jew to immigrate to the State of Israel in which Jews will be the majority; Hebrew is the primary official language of the state; Jewish heritage is a central component of its religious and cultural heritage”). Third, it would appear that practical experience shows that the objections in debates upon negation of the Jewish state focused upon the return to Zion, and not upon questions of general, historical, and religious symbols. Thus, the practical consequences of this distinction are unclear. The primary practical problem concerns proposals to annul the Law of Return, and not merely the changing of the symbols. In any case, it would seem that a construction that includes “internal” characteristics of the term “Jewish” would be more precise, and thus I would take exception to my colleague Justice Mazuz’s distinction. Of course, when I say “internal”, I refer to the most basic matters, but there is no need for elaboration or for a precise delineation.

            A final point. According to the position of the Attorney General, there is significance to the fact that the Ra’am and Balad parties are running together on one list. As opposed to this, I am of the opinion that as a rule, a party that has been tainted by a cause that disqualifies it from participating in the elections cannot cross the hurdle by joining with another party. Such an approach would afford too easy an exemption for a party that should be disqualified simply because it joins with another. In my view, the Attorney General’s approach, according to which weight should be given to the combining of parties – even if this does not grant an “exemption” – is problematic. The reason for this is that it is not clear how to calculate such a factor. There is also the fear that parties might join together so that one will “clean” the other of the cause that has tainted it. It is one thing to recognize remorse, and another to grant a seal of approval due to joining another party. I am of the opinion that if there is a cause for disqualification, then the law requires that the list be barred from running, subject, of course, to restricting disqualification to exceptional cases. Therefore, I did not grant weight to the arguments concerning the relationship between Balad and Ra’am in examining the matters.

9.         The right to vote and the right to be elected are twins, but not identical. In practice, “to vote and be elected” is presented as a single right, when each actually has an independent dimension. This is so, despite the strong connection between them, regarding which it suffices to mention that the right to be elected influences the right to vote. I will demonstrate what the two rights share and what distinguishes them in regard to the issue addressed in these proceedings – the application of sec. 7A of Basic Law: The Knesset.  

            The right to vote focuses upon the identity of the decider and the right to be elected on the question of who is qualified to represent the people, or in our case – who is not qualified to represent them. It would appear that the right to vote places its emphasis upon the individual. The vote of every voter is worth no less that the vote of any other voter, regardless of his status, position, conduct, or statements. Therefore, the criteria for identifying who is entitled to vote are formal. As opposed to this, the question as to who can be elected is not merely formal, but value based. This is how we are to understand the causes that prevent participation in the elections that concern not only support for armed struggle, but also negation of the existence of the State of Israel as a Jewish and democratic state, and incitement to racism. Its purpose is to define the society and its boundaries. The purpose of the right to vote is to protect the individual, whereas the purpose of the right to be elected is to protect the unity of the nation. Both rights are precious.

***

It was therefore decided, on March 17, 2019, by a majority, in accordance with the opinion of President E. Hayut, not to approve the decision of the Central Elections Committee in the matter of the disqualification of the candidacy of Cassif; to grant the appeal in the matter of the Ra’am-Balad list and rule that it is not barred from participating in the elections for the 21st Knesset; to grant the appeal in the matter of Ben Ari and rule that he is barred from participating in these elections. In addition, the Court unanimously decided to deny the appeal in all that regards the Election Committee’s decision not to disqualify the Hadash-Ta’al list, and to deny the appeal in the matter of the non-disqualification of Ben Gvir.

Given this day, 15 Tammuz 5779 (July 18, 2019).

 

 

[1] Mishna Eduyot 5:7 – ed.

[2] Jeremiah 51:5 – ed.

                                                                                                                                    EDA 1806/19

                                                                                                                                  EA 1866/19

                                                                                                                                  EA 1867/19

                                                                                                                                  EA 1876/19

 

In re:                                      Central Elections Committee for the 21st Knesset

 

Plaintiffs in EDA 1806/19:               1.         MK Avigdor Lieberman

                                                            2.         MK Oded Forer

                                                            3.         Yisrael Beiteinu Faction

Appellants in EA 1866/19:               1.         Issawi Frej

                                                            2.         Ofer Kornfeld

                                                            3.         Atara Litvak

                                                            4.         Debbie Ben Ami

                                                            5.         Sonia Cohen

                                                            6.         Richard Peres

                                                            7.         Eran Yarak

                                                            8.         Gil Segal

                                                            9.         Shifrit Cohen Hayou Shavit

                                                            10.       Osama Saadi

                                                            11.       Wiam Shabita

                                                            12.       Yousouf Fadila

                                                            13.       Meretz Faction

                                                            14.       MK Stav Shaffir

15.       Reform Movement for Religion and State – Israel Movement for Progressive Judaism  

16.       Tag Meir Forum

Appellants in EA 1867/19:               1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Hoshaya Harari

                                                            4.         Yochai Revivo

                                                            5.         MK David Bitan

                                                            6.         Elidor Cohen

                                                            7.         Yaakov (Kobi) Matza

                                                            8.         Yigal Harari

                                                            9.         Yaakov Dekel

                                                            10.       Shimon Boker

                                                            11.       Yossi Shalom Haim Rozenboim

Appellant in EA 1876/19:                             Ra’am List

 

                                                                        v.

 

Respondents in EDA 1806/19:         1.         Dr. Ofer Cassif

                                                            2.         Attorney General

Respondents in EA 1866/19:            1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Central Elections Committee for the 21st Knesset

                                                            4.         Attorney General

Respondents in EA 1867/19:            1.         Hadash-Ta’al List

                                                            2.         Central Elections Committee for the 21st Knesset

                                                            3.         Attorney General

Respondents in EA 1876/19:            1.         Central Elections Committee for the 21st Knesset

                                                            2.         Likud Faction et al.

                                                            3.         Dr. Michael Ben Ari et al.

                                                            4.         Attorney General

                                                            5.         The Knesset

 

EDA 1806/19: Approval procedure under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1866/19: Appeal under sec. 63A(d) and sec. 65(A1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1867/19: Appeal under sec. 64(a1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1876/19: Appeal under sec. 64(a) of the Knesset Elections Law [Consolidated Version], 5729-1969

 

The Supreme Court

Before: President E. Hayut, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice M. Mazuz, Justice A. Baron, Justice G. Karra, Justice D. Mintz

 

Supreme Court cases cited:

1.         EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. MK Ahmad Tibi, IsrSC 57 (4) 1 (2003)

 

2.         EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18th Knesset (Jan. 21, 2009)

3.         EDA 9255/12 Central Election Committee for the 19th Knesset v. MK Hanin Zoabi (Feb. 18, 2015)

4.         EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11th Knesset, IsrSC 39(2) 225 (1985) [https://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]

5.         EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12th Knesset, IsrSC 42(4), 177 (1988) [https://versa.cardozo.yu.edu/opinions/kach-v-central-election-committee-twelfth-knesset]

6.         EDA 1095/15 Central Election Committee for the 20th Knesset v. Hanin Zoabi, (Dec. 10, 2015)

7.         LCA 7504/95 Yassin v. Registrar of Parties, IsrSC 50(2) 45 (1996)

8.         EA 1/65 Yaakov Yeredor v. Chairman of the Central Elections Committee for the 6th Knesset, IsrSC 19(3) 365 (1964) [https://versa.cardozo.yu.edu/opinions/yeredor-v-chairman-central-elections-committee-sixth-knesset]

9.         EA 2/88 Ben Shalom v. Central Elections Committee for the 12th Knesset, IsrSC 43(4) 221 (1989)

10.       EA 2805/92 Kach List v. Chairman of the Central Elections Committee for the 13th Knesset (unpublished)

11.       EA 2858/92 Movshovich v. Chairman of the Central Elections Committee for the 13th Knesset, IsrSC 46(3) 541 (1992)

12.       HCJ 5744/16 Ben Meir v. Knesset, (May 27, 2018)

13.       HCJ 11225/03 Azmi Bishara v. Attorney General, IsrSC 60(4) 287 (2006)

14.       HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General, (Dec. 9, 2015)

15.       HCJ 392/72 Berger v. District Planning and Building Council, Haifa District, IsrSC 27(2) 764 (1973)

16.       HCJ 547/98 Federman v. Government of Israel, IsrSC 53(5) 520 (1999)

17.       AAA 8342/02 Ben Gvir v. Commissioner of Police, IsrSC 57(1) 61 (2002)

18.       LCA 6709/98 Attorney General v. Moledet Gesher-Tzomet List for the Nazereth Illit Local Council Elections, IsrSC 53(1) 351

19.       HCJ 4552/18 Zahalka v. Speaker of the Knesset, (Dec. 30, 2018)

20.       EA 2600/99 Erlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

21.       HCJ 5364/94 Wilner v. Chair of the Israel Labor Party, IsrSC 49(1) 758 (1995)

22.       HCJ 14/86 Laor v. Theater and Film Review Board, IsrSC 41(1) 421 (1987)

23.       HCJ 399/85 MK Rabbi Meir Kahane v. Broadcasting Authority Directorate, IsrSC 41(3) 255 (1987)

24.       HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner, (Dec/ 28, 2016)

25.       HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, IsrSC 58 (6) 685 (2004)

26.       CA 4096/18 Chacham and Or-Zach Advocates v. Assessment Officer – Akko, (May 25, 2019)

27.       CrimA 7007/15 Shmil v. State of Israel, (Sept. 5, 2018)

28.       CA 8742/15 Astrolog Publishers Ltd., v. Ron, (Dec. 3, 2017)

29.       CrimA 961/16 Alharoush v. State of Israel, (Nov. 25, 2018)

30.       AAA 3326/18 A. v. Director of Firearm Licensing, Southern District – Ministry of Public Security, (Feb. 26, 2019)

31.       HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202 (2006) [https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]

32.       HCJ 7625/06 Martina Rogachova v. Ministry of Interior, (March 31, 2016) [https://versa.cardozo.yu.edu/opinions/rogachova-v-ministry-interior]

33.       EA 2600/99 Ehrlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

34.       CrimA 6833/14 Naffaa v. State of Israel, (Aug. 31, 2015)

35.       EDA 50/03 Central Elections Committee for the 16th Knesset v. Tibi, IsrSC 57(4) 1 (2003)

 

 

Judgment (Reasoning)

(July 18, 2019)

 

President E. Hayut:

Introduction

1.         On March 6, 2019, the Central Elections Committee for the 21st Knesset (hereinafter: the Elections Committee or the Committee) approved a request for the disqualification of Dr. Ofer Cassif (hereinafter: Cassif) from running as a candidate for the Knesset on the list of “Hadash – headed by Ayman Odeh, Ta’al – headed by Ahmed Tibi” (hereinafter: Hadash-Ta’al) but rejected a request to disqualify the Hadash-Ta’al list in its entirety. The Committee further accepted two requests to disqualify the Ra’am-Balad list (hereinafter: Ra’am-Balad) and to bar Advocate Itamar Ben Gvir from standing for election.

            These decisions were the focus of the appeal and approval proceedings before us.

            The three appeals – EA 1866/19, EA 1867/19 and EA 1876/19 – which will be presented below, were filed on March 12, 2019, in accordance with sec. 63A(d) of the Knesset Elections Law [Consolidated Version], 5729-1969 (hereinafter: the Elections Law) (in regard to the disqualification of a candidate) and secs. 64(a) and 64(a1) of that Law (in regard to the disqualification of lists). The approval proceeding – EDA 1806/19 – was filed on March 10, 2019 by the Elections Committee, in accordance with the provisions of sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset (hereinafter: Basic Law: The Knesset or the Basic Law).

2.         Sections 63A(e) and 64(b) of the Elections Law require that the Court issue a judgment in appeal and approval proceedings “no later than the 23rd day prior to Election Day”. In regard to the elections for the 21st Knesset, which took place on April 9, 2019, we were therefore required to render judgment in the appeal and approval proceedings no later than March 17, 2019. Under the time constraint from the time of the filing of the proceedings – March 10, 2019, and March 12, 2019 – to the date upon which we were required to render judgment – March 17, 2019 – we allowed the Respondents in each of the proceedings to file written pleadings, and we heard supplementary oral arguments before a nine-judge panel, as required by the Law.  The hearings took place on Wednesday, March 13, 2019, and Thursday, March 14, 2019, and the judgment was duly handed down on Sunday, March 17, 2019, without stating reasons in view of the statutory time constraints detailed above, and as has been usual in such proceedings over the years (see, for example: EDA 11280/02 Central Elections v. Tibi, [1]; EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18th Knesset [2]; EDA 9255/12 Central Election Committee v. Zoabi [3]). In the judgment, a majority of eight justices, against the dissenting opinion of Justice D. Mintz, decided not to approve the decision of the Elections Committee in the matter of the disqualification of Cassif. The Court unanimously decided to reject the appeal in regard to the Elections Committee’s decision not to disqualify the Hadash-Ta’al list. The Court also decided, by a majority of eight justices, against the dissenting opinion of Justice D. Mintz, to grant the appeal in regard to the Ra’am-Balad list, and to order that the list is not barred from participating in the Knesset elections. The Court further unanimously rejected the appeal in regard to the decision not to disqualify Ben Gvir, and decided by a majority, against the dissenting opinion of Justice N. Sohlberg, to grant the appeal in the matter of Ben Ari and order his disqualification as a candidate for the 21st Knesset. Four days later, on March 21, 2019, we published a summary of the reasoning grounding the judgment, and we now present the full reasoning.

 

General Background and Normative Framework

3.         The right to vote and be elected is the life breath of every democratic regime, and the conceptual foundation of this right is grounded in the fundamental principles of equality and freedom of political expression (EA 2/84 Neiman v Central Elections Committee [4], 262-264 (hereinafter: the first Neiman case); EA 1/88 Neiman v Central Elections Committee [5], 185 (hereinafter: the second Neiman case); EA 561/09 Balad v. Central Elections Committee [2], para. 2 (hereinafter: the Balad case); EDA 9255/12 Central Election Committee v. Zoabi [3], para. 7 (hereinafter: the first Zoabi case); EDA 1095/15 Central Elections Committee v. Zoabi [6], para. 5 (hereinafter: the second Zoabi case); cf. LCA 7504/95 Yassin v. Registrar of Parties [7], 58-60 & 71 (hereinafter: the Yassin case); Ruth Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, in A. Barak (ed.), Essays in Honor of Shimon Agranat, (1986), 145, 151-152 (in Hebrew) (hereinafter: Gavison)).

            Nevertheless, equality and freedom of political expression are not unrestricted rights, and it has already been held that “it is the right of a democracy to deny the participation in the democratic process of lists that reject democracy itself […] one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14 (hereinafter: the Tibi case); and further see the Yassin case, p. 62, the first Zoabi case, para. 8; the second Zoabi case, para. 6). Therefore, along with the formal capacity conditions that must be met in order to realize the right to vote and be elected, which concern, inter alia, age and citizenship (see: sec. 5 of Basic Law: The Knesset in regard to the right to vote, and secs. 6, 6A and 7 of that Law in regard to the right be elected), there is a need for material restrictions intended to prevent participation in the elections by lists and candidates that seek to use the tools of democracy in order to deny the very existence of the state or infringe its fundamental principles.

4.         As will be explained in the brief survey below, such material restrictions have been developed over the years in Israeli law, as well. At its inception, the State of Israel adopted a democratic regime characterized, inter alia, by the values of equality and freedom of political expression mentioned above. Alongside those values, and without any necessary contradiction, the sovereign State of Israel was established as a Jewish state, in recognition of the right of the Jewish people to national rebirth in its land. This important fundamental principle, which Justice M. Cheshin defined as an “axiom” when he served as chair of the Central Elections Committee for the 16th Knesset, must also be protected. President A. Barak addressed this in the Tibi case, stating:

There are many democratic states. Only one of them is a Jewish state. Indeed, the reason for the existence of the State of Israel is its being a Jewish state. This character is central to its existence, and it is – as Justice M. Cheshin stated before the Central Elections Committee – an “axiom” of the state. It should be seen as a “fundamental principle of our law and system” (emphasis original; ibid., p. 21).

President D. Beinisch addressed the uniqueness of Israeli democracy in this regard in the Balad case, noting:             

The State of Israel’s being the only state that serves as a home for the Jewish people, and therefore preserves unique characteristics worthy of protection, is the starting point for every discussion of the character of the state (ibid., para. 3).

In this regard, it would not be superfluous to note that there are those who hold the opinion that there is a “significant moral tension that requires a process of reconciliation between opposing values (Justice I. Englard in the Tibi case, p. 64. For a detailed discussion of this subject, see:  Adi Gal & Mordechai Kremnitzer, Disqualification of Party Lists and Candidates – Does it Strengthen Democracy or Weaken It? (Israel Democracy Institute, 2019) 22-26 (Hebrew)). As opposed to this, there are those who are of the opinion that there is no contradiction between democratic values and Jewish values, but rather they derive from one another (the second Neiman case, pp. 189-190; Justice Y. Amit in the second Zoabi case, para. 3; Elyakim Rubinstein, On the Equality of Arabs in Israel, 1 Kiryat Mishpat 17, 26 (20021) (Hebrew)). Below, we will address the material restrictions established in regard to the right to vote and be elected in Israeli law. As  will be seen, these restrictions define Israel as a Jewish and democratic state without distinction between these two frameworks, in the spirit of the principles we addressed above.

5.         Since 1985, the material constitutional restrictions upon the right to vote have been grounded in sec. 7A of Basic Law: The Knesset. This section, in its current form, establishes:

7A(a).  A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

6.         As already noted, these restrictions developed in Israeli law over the course of years. Basic Law: The Knesset, which was enacted in 1958, did not originally comprise a material provision – as opposed to a formal provision in regard to competence – that restricted the right to be elected. The absence of such a provision notwithstanding, in EA 1/65 Yeredor v. Chairman of the Central Elections Committee [8] (hereinafter: the Yeredor case), the Court recognized the authority of the Elections Committee not to approve the participation of the Socialists list in the elections for the 6th Knesset because the list, and the El Ard organization with which it identified, “deny the integrity of the State of Israel and its very existence”. Some twenty years later, the Court again addressed the disqualification of a list from standing for election. The Central Elections Committee for the elections for 11th Knesset in 1984 disqualified the Kach list and the Progressive List for Peace from standing for election. The Kach list was disqualified by the Committee for the racist and anti-democratic principles that it espoused, its open support for terrorism, and incitement of hatred and hostility between different sectors of the Israeli populace. The Progressive List for Peace was disqualified due to the Committee’s determination that the list comprised subversive foundations and tendencies and that central members of the list acted in a manner that identified with the state’s enemies. The disqualification of the two lists was brought before the Court in the first Neiman case, which held, by majority, that in the absence of an express provision of law, the doctrine established in the Yeredor case should be limited to the causes for disqualification set out there, i.e., denial of the very existence of the state – which must be proven by clear, unequivocal, and persuasive evidence (for a critique, see Gavison, at pp. 184-195).

7.         Following the judgment in the first Neiman case, the legislature amended Basic Law: The Knesset and added sec. 7A. This section, in its original form, comprised three causes for disqualifying a list of candidates whose purposes or actions expressly or impliedly amounted to (1) negation of the existence of the state as the state of the Jewish people; (2) negation of the democratic character of the state; (3) incitement to racism.

            When the Kach list again sought to stand for election for the 12th Knesset in 1988, the list was disqualified by the Elections Committee for the reasons set out in subsecs. (2) and (3) of sec. 7A. The appeal of the decision was denied by the Court (see: the second Neiman case), which held that the list indeed negated the democratic character of the state and that its activities constituted incitement to racism. In its decision, the Court emphasized that given the importance of the freedoms that the rights to vote and to be elected are intended to realize, affirming those rights is preferable to denying them, and the disqualification of a list must be reserved for the most extreme cases. That year, the Court also adjudicated another proceeding related to the elections for the 12th Knesset. The Court majority denied an appeal of a decision by the Central Elections Committee not to disqualify The Progressive List for Peace from standing for election (EA 2/88 Ben Shalom v. Central Elections Committee [9]). In 1992, after the murder of the founder of the Kach movement, Rabbi Meir Kahane (hereinafter: Rabbi Kahane), in 1990, the Central Elections Committee disqualified two lists that viewed themselves as the heirs to Rabbi Kahane from participating in the elections for the 13th Knesset. A unanimous Court denied the appeals of the disqualifications, adopting the criteria established in the second Neiman case (EA 2805/92 Kach List v. Chairman of the Central Elections Committee [10] (hereinafter: the Kach case)); EA 2858/92 Movshovich v. Chairman of the Central Elections Committee [11] (hereinafter: the Movshovich case)).       

8.         In 2002, sec. 7A of the Basic Law was amended. The amendment comprised three primary changes: (1) the separate causes for disqualification in regard to negating the existence of the State of Israel as a Jewish state and as a democratic state were unified as one cause; (2) an additional cause was added under which a list could be disqualified from participation in elections if it supported armed struggle by a hostile state or a terrorist organization against the State of Israel; (3) it was established that not only could an entire list be disqualified, but also a candidate could be disqualified from standing for election, but that as opposed to the disqualification of a list, the disqualification of a candidate required the approval of the Supreme Court.

9.         In the Tibi case, the Court addressed a number of decisions given by the Central Elections Committee for the 16th Knesset in regard to the elections in January 2003, among them the first decisions of their kind pursuant to the aforementioned amendment to sec. 7A of the Basic Law. The Elections Committee decided to disqualify Knesset members Ahmed Tibi of the Hadash-Ta’al list (hereinafter: Tibi) and Azmi Bishara of the Balad list (hereinafter: Bishara). The Committee further decided that Baruch Marzel of the Herut list (hereinafter: Marzel) should not be disqualified. In addition, the Committee decided to disqualify the Balad list from standing for election. In the Tibi case, the Court focused upon and outlined the criteria for each of the causes in sec. 7A of the Basic Law. On that basis, the Court decided not to approve the Election Committee’s decision to disqualify Knesset members Tibi and Bishara from standing for election. The decision in regard to Tibi was unanimous, whereas the decision in regard to Bishara was by a majority. A majority further dismissed the appeal of the Committee’s decision to permit Marzel’s candidacy, and the appeal against the disqualification of the Balad list was granted by a majority, and it was held that the list could stand for election.

10.       Another amendment to sec. 7A of the Basic Law was adopted in 2008, adding sec. (a1) that established: “In connection with this article, a candidate who was illegally present in an enemy state in the seven years that preceded the deadline for submitted lists of candidates shall be considered someone whose actions constitute support for an armed conflict against the State of Israel, unless he has proven otherwise”. About a year after that amendment, prior to the elections for the 18th Knesset, the Court addressed an appeal of the Elections Committee’s decision to disqualify the Balad and Ra’am-Ta’al list for the causes enumerated in secs. 7A(a) and (3) of the Basic Law. A majority of the Court granted the appeal, and            the participation of those lists was permitted. In 2012 and 2015, the Court was again called upon to address the disqualification of candidates. In the first Zoabi case, the Court unanimously overturned the Central Election Committee’s decision to disqualify Knesset member Hanin Zoabi (hereinafter: Zoabi) from running in the elections for the 19th Knesset for the causes enumerated in secs. 7A(a)(1) and (3) of the Basic Law. In the second Zoabi case, two approval proceedings were addressed jointly after the Central Elections Committee disqualified Zoabi’s participation in the elections for the 20th Knesset for the causes enumerated in sec. 7A(a)(1) and (3) of the Basic Law, and also disqualified Marzel from participating in those same elections for the causes enumerated in secs. 7A(a)(1) and (2). A majority of the Court decided not to approve the Elections Committee’s decisions in regard to both Zaobi and Marzel, and both stood as candidates in those elections.

11.       The judgment in the second Zoabi case was rendered in 2015. In 2017, section 7A of the Basic Law was amended again to add the words “including his expressions” after the words “the actions of the person”. It is important to emphasize that, as opposed to various arguments raised before us in these proceedings, this amendment – as stated in its Explanatory Notes – “was not intended to change the case law of the Court according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state”. In other words, the strict evidentiary threshold outlined in the case law over the years for proving the existence of the causes for disqualification remains as it was, given the purpose of the section and the balance between the values it is intended to protect.

            To complete the picture, we would note that in 2016, the Knesset approved an amendment to the Basic Law in regard to the termination of the tenure of a member of the Knesset for incitement to racism or support of armed struggle by an enemy state or of a terrorist organization against the State of Israel, as stated in secs. 7A(a)(2) or 7A(a)(3) of the Basic Law. We would further note for the sake of completing the picture that two petitions filed against the constitutionality of the said amendment were denied (HCJ 5744/16 Ben Meir v. Knesset [12]) (hereinafter: the Ben Meir case).

 

The Causes for Disqualification established in Section 7A

12.       Having surveyed the proceedings and legislative amendments relevant to the disqualification of lists and candidates seeking to stand for election to the Knesset and the development of the case law and the Basic Law in this regard, it would now be appropriate to address the interpretive principles and the criteria outlined and applied in all that regards the various causes for disqualification. I would preface by stating that the prevailing trend in this Court’s case law is that a cautious, restrained approach should be adopted in all that relates to the disqualification of lists and candidates participating in Knesset elections. Indeed, in view of the magnitude of the rights to vote and be elected, this Court has repeatedly held that the starting point is that the causes for disqualification should be interpreted narrowly and should be applied in the most extreme cases (see, for example, the second Neiman case, at p. 187; the Tibi case, at pp. 17-18). From this starting point, the case law derived the answer to the question of what must be proved in order to ground the presence of any of the causes for disqualification, as well as the criteria in regard to the required evidentiary threshold. We will first examine the case-law interpretation of what is required to prove each of the causes for disqualification, and then examine the criteria established in regard to the required evidentiary threshold.

(1) Negation of the existence of the State of Israel as a Jewish and democratic state

13.       The first cause established under sec. 7A(a)(1) of Basic Law: The Knesset concerns preventing participation of candidate lists or candidates in the elections if the purposes or actions of the list or the actions of the candidate, including his statements, constitute a negation of the existence of the State of Israel as a Jewish and democratic state. The “nuclear-minimal” characteristics of the State of Israel as a Jewish state and its “nuclear-minimal” characteristics as a democratic state were established in the Tibi case, which held that it is the infringement of these characteristics that may give rise to a cause for disqualification under sec. 7A(a)(1) of the Basic Law. In the matter of the “nuclear” characteristics that define the State of Israel as a Jewish state, it was held that these include the right of every Jew to immigrate to the State of Israel, in which there will be a Jewish majority; that Hebrew is the primary official language of the state; that the symbols and holidays of the state primarily reflect Jewish tradition, and that the Jewish heritage is a central element of the religious and cultural heritage of the state (the Tibi case, p. 22; and compare the view of Justice Y. Turkel in that case at p. 101; and see the second Zoabi case, para. 66, and the first Zoabi case, para. 20; the Balad case, para. 6; and compare the Yassin case, p. 66; the opinion of Justice S. Levin in the Ben Shalom case, p. 248; and see: Amnon Rubinstein & Raanan Har-Zahav, Basic Law: The Knesset, 64 (1993) (Hebrew)).

            As for the “nuclear” characteristics of the State of Israel as a democratic state, it was held that “these characteristics are based […] upon recognition of the sovereignty of the people, as expressed in free, equal elections; recognition of the core human rights, among them human dignity, respect and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (the Tibi case, p. 23; and see the second Zoabi case, para 29; and compare the Yassin case, p. 66). It was further noted in the Tibi case that a list that negates the right to vote for the Knesset on ethnic-national grounds, or a list seeks to change the regime by violent means will not be permitted to stand for election, as it essentially negates the democratic foundations of the Israeli regime (ibid., p. 24; and see the second Neiman case, p. 190, and the second Zoabi case, para. 30).

(2) Incitement to racism

14.       The second cause for disqualification, established in sec. 7A(a)(2), is incitement to racism. We will address the grounds of this cause and its underlying rationales, particularly in a Jewish state, at greater length below. At this stage, we would note that already in the second Neiman case, in which, for the first time following the enactment of sec. 7A of the Basic Law, the Kach list was disqualified on the grounds of incitement to racism, the Court held, per President M. Shamgar,  that the “objectives and conduct [of the list] are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation” (ibid., p. 197).

(3) Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

15.       The third cause for disqualification, established in sec. 7A(a)(3) of the Basic Law, concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel. This cause is premised upon the primary conceptual justification for the disqualification of candidates and lists – viz., defense against those who would seek to negate the very existence of the state or undermine the foundations of its existence and its democratic nature by means of armed struggle (the first Zoabi case, para. 29). In the Tibi case, President A. Barak noted in regard to this cause that: “Democracy is allowed to prevent the participation of candidate lists that employ violence or support violence as a tool for changing the nature of the regime” (ibid., p. 26; and also see the second Zoabi case, para. 69). Preventing participation by virtue of this cause will, of course, be possible where a candidate or a list personally takes active part in an armed struggle of a terrorist organization or an enemy state, as well as where they encourage such a struggle or provide material, political or other support (ibid., para. 69; and see the Tibi case, p. 27; the Balad case, para. 7; the first Zoabi case, para. 29). Disqualification of a list or candidate by virtue of this cause would be possible only if the support is of an armed struggle by an enemy state or a terrorist organization (the Tibi case, p. 27; and see the second Zoabi case, para. 69; for a detailed discussion of this cause, see: Gal & Kremnitzer, 16-19).

 

The Criteria in regard to the Required Evidentiary Threshold

16.       Alongside the narrow interpretation of the causes for disqualification established under sec. 7A of the Basic Law, over the years, the case law further added a series of strict criteria in regard to the required evidentiary threshold for the crystallizing of any of the causes. These criteria limit the possibility of disqualifying a list or candidate from standing for election to the Knesset only to clear, extreme cases due to the intense caution that the Court adopts as the starting point in this regard (the Balad case, para. 3; and see the opinion of Justice S. Levin in the Ben Shalom case, p. 248; the Kach case, p. 2). Below, we will summarize the criteria outlined in the case law in regard to the evidentiary threshold required for the existence of the disqualifying causes. These criteria were, for the most part, first applied in regard to the disqualification of lists, and after the amendment of the Basic Law in 2002, they were respectively adopted in regard to the disqualification of an individual candidate, as well (see the Tibi case, the first Zoabi case and the second Zoabi case). These are the criteria:

            (-)        First, in order to decide whether one of the elements set forth in sec. 7A is present in the objectives or actions of a list or a candidate, it must be shown that the objective is one of the dominant characteristics of the list’s or the candidate’s aspirations or activities, and that they seek to participate in the elections in order to advance them (see the second Neiman case, p. 187; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Second, it must be shown that these central, dominant purposes can be learned from express declarations and direct statements or reasonable conclusions of clear, unequivocal significance (the second Neiman case, p. 188; the Tibi case, p. 18, the Balad case, para. 4; the first Zoabi case, para 14).

            (-)        Third, it must be shown that the list or the candidate actively works for the realization of the said objectives, and that there was non-sporadic activity for their realization. It was held that objectives of a theoretical nature are insufficient, and that there must be a showing of systematic, repeated activity whose “intensity must be given severe, extreme expression” (the second Neiman case, p. 196; the Tibi case, p. 18; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Fourth, the evidence grounding the actions or objectives sufficient to prevent standing for election to the Knesset must be “clear, unambiguous and persuasive” (the second Neiman case, p. 188; the Tibi case, p. 18; the second Zoabi case, para. 34; compare: the first Neiman case, p. 250), and a “critical mass” of highly credible evidence is required to justify the disqualification (the Tibi case, p. 43; the first Zoabi case, para. 14). The burden of proof in this regard rests upon the party arguing for disqualification of the list or candidate, and a doubt arising as to the sufficiency of the evidence must weigh against the disqualification (the second Neiman case, pp. 248-249; the Kach case, p. 3).

17.       A complex question concerning the evidentiary threshold for proving the causes for disqualification under sec. 7A of the Basic Law is that of whether to apply probability tests for the realization of the dangers that the causes for disqualification are intended to prevent. There is a difference of opinion in the case law, and the matter has been left for further consideration and has yet to be decided. The spectrum of opinions expressed on this matter range from an approach that rejects the application of the probability test (see the position of Justice M. Elon in the first Neiman case, p. 297; President M. Shamgar following the enactment of sec. 7A of Basic Law: The Knesset in the second Neiman case, p. 187; Justice S. Levin in the Ben Shalom case, p. 248; and Justices S. Levin. E. Mazza, and D. Dorner in the Tibi case, pp. 81, 96-97, and 99), to the opposite approach that is of the view that this test should be applied to each and every one of the disqualification causes in sec. 1A of the Basic Law (Justice E. Rivlin in the Tibi case, p. 106, and see Barak Medina, Forty Years to the Yeredor  Decision: The Right to Political Participation, 22 Mekhkarei Mishpat 327, 376-381 (2006) (Hebrew)). As noted, the matter has been left for further consideration and has not yet been decided in the case law (see President A. Barak and Justices A. Procaccia and D. Beinisch in the Tibi case, pp. 21, 88, 90; President D. Beinisch in the Balad case; President A. Grunis in the first Zoabi case, para. 34; President M. Naor in the second Zoabi case, para. 36).

            A middle position between these two opposing views on the application of the probability test has also been expressed, according to which a distinction can be drawn between the causes under sec. 7A(a)(1) and (3) and the cause concerning incitement to racism under sec. 7A(a) (2). Thus, for example, in the Tibi case, Justice Procaccia noted that “condemnation of incitement to racism and its removal from the political election process are values unto themselves, independent and unqualified even when unaccompanied by any probability of the realization of the potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entry of inciters to racism into the political arena […] incitement to racism is condemned as a value of the universal and national heritage, and it stands beyond the test for the probability of its foreseeable danger under any particular criterion. The contradiction between racism and the fundamental values of the state is so extreme that anyone who holds it as part of one’s political doctrine should be disqualified out of hand” (ibid., p. 90; Gal & Kremnitzer, 62-63). Another opinion that distinguishes the cause related to incitement to racism and the other causes in regard to the probability test, and which proposes applying a very low-level probability test to it, was expressed by Justice D. Beinisch in that matter, in stating: “If I were of the opinion that we should adopt the approach that applies ‘probability tests’ for the disqualification of lists or candidates, then in all that regards racism, I would hold that ‘racism’ in its ‘nuclear’ sense comprises, by its very nature, a potential for danger whose probability is a real possibility. Racism, by its very nature, may spread like a disease even when it appears that the scope of the political activity surrounding it is small, and the political prospects of the list or candidate are not serious. Racism is a type of disease for which isolation and removal from the political and social arena are conditions for preventing its spread” (p. 88). We will address this subject below, and examine whether there is, indeed, a place for a different approach to the cause of incitement to racism as opposed to the other causes in relation to probability tests.

            Another question that derives to some extent from the probability test and that concerns the necessary evidentiary threshold for proving the existence of the causes for disqualification is whether and to what extent there is a connection between the causes for disqualification and the criminal offenses intended to protect those values. In this regard, it would appear that the approach adopted in the case law holds that the Penal Law can assist in identifying the presence of the elements of causes for disqualification, while emphasizing that we are concerned with different methods for the prevention of the phenomena and that the tests applicable in each of the areas are not the same (see President M. Shamgar in the second Neiman case, p. 191; President A. Grunis in the first Zoabi case, para. 32; and see Gavison, p. 166; and cf. the Ben Meir case, para. 28; and HCJ 11225/03 Bishara v. Attorney General [13]).

 

An Elections Appeal and Approval of an Elections Committee Decision – What is the Difference?

18.       Basic Law: The Knesset distinguishes two types of decisions by the Central Elections Committee. The first is Elections Committee decisions to prevent or not prevent a candidate list from standing for election. Such decisions can be challenged in an appeal to the Supreme Court, under secs. 64(a) and 64(a1) of the Elections Law. The second is Election Committee decisions declaring that a particular candidate is barred from participating in the elections. Such a decision requires the approval of the Supreme Court, under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Elections Law, whereas an Elections Committee decision to deny a request to bar a candidate from standing for election is of the first type of decisions in the sense that it does not require approval but can be appealed to the Supreme Court, under sec. 63A(d) of the Elections Law.

            The procedure for approving an Elections Committee decision is not one of “regular” judicial review in the sense that decision is not consummated until approval is granted. In this, it differs from appeal proceedings in regard to Election Committee decisions, which come into force when given. The scope of the Court’s authority in an approval proceeding is not identical to that granted it in an appeal proceeding. It has been held in this regard that the Court must refrain from nullifying a decision under appeal even if it would have decided differently, as long as it is lawful and does not deviate from the margin of reasonableness. As opposed to this, in an approval proceeding, the Court is granted authority to examine whether it, itself, approves the disqualification of the candidate from standing for election (the Tibi case, pp. 28-31; the first Zoabi case, para 15; the second Zoabi case, paras. 12-13).  It is interesting to note that there are different approaches in the case law in regard to the scope of the Court’s intervention in the decisions of the Elections Committee due to the fact that it is primarily a political body that weighs political considerations. Thus, there are those who take the view that this fact justifies narrowing the scope of intervention in the Committee’s decisions (Justice E. Rivlin in the Tibi case, p. 109, and Justice S. Levin in the Ben Shalom case, p. 251). As opposed to this, there are those of the opinion that “this fact of the political composition of the Committee, with the exception of its chair, requires an examination of the merits of the Committee’s decision by the this Court in order to prevent political considerations from outweighing an objective legal examination” (Deputy President M. Elon in the Ben Shalom case, p. 279; for a similar view, see Justice D. Beinisch in the Tibi case, p. 86 and the Balad case, para. 16).

            This feature of the Central Elections Committee as a primarily political body that makes decisions influenced by political considerations, with no obligation to explain those decisions, indeed justifies examination and consideration by the legislature (see the comment of President Naor in the second Zoabi case, para. 78, and Gal & Kremnitzer, 61-62). At present, the Court is responsible for both types of proceedings brought before it in accordance with the provisions of Basic Law; The Knesset and the Elections Law, and the distinctions between them as presented above. In this regard, it would not be superfluous to further note what we held in this regard in another context – that of the Ben Meir case – in which it was argued that there is constitutional significance to the distinction between the two proceedings. In rejecting that argument, we held: “There is, indeed, a difference in the scope of authority granted to the Court in the framework of an elections appeal as opposed to an approval of a decision […] however, at the end of the day, this Court has the authority [even in an appeals proceeding – E.H.] to review the decision on the merits, and to oversee its lawfulness and reasonableness, including all that relates to the factual foundation” (ibid., para. 34).

19.       Having presented the general normative framework for the proceedings before us, I will now turn to an examination of each of the four proceedings and decide upon them.

EA 1866/19 Freij v. Ben Ari

20.       Three requests for the disqualification of Ben Ari and Ben Gvir were submitted to the Central Elections Committee. Two of the requests – that submitted by the Israel Religious Action Center - Israel Movement for Progressive Judaism and the Tag Meir Forum, and that submitted by MK Stav Shaffir – relied upon two causes for disqualification: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and incitement to racism under sec. 7A(a)(2) of the Basic Law. The third request – submitted by members of the Meretz faction – relied upon the single cause of incitement to racism. After considering those requests, the Elections Committee decided, as noted, to reject all three requests, and thus the appeal before us, which was filed jointly by all the parties requesting disqualification.

 

Arguments of the parties

21.       The Appellants argue that Ben Ari and Ben Gvir have consistently acted for years to realize the racist doctrine of Rabbi Meir Kahane and the Kach list, which was disqualified from running for election, and act in an extreme manner to humiliate Israeli Arabs, including by calling for their expulsion from the country. According to the Appellants, Ben Ari and Ben Gvir support a racist ideology that seeks to undermine the principles of equality and human dignity in regard to anyone who is not Jewish. It was argued that the judgments that addressed the Kach list clearly established that its ideology is racist and infringes the fundamental principles of the democratic regime. The Appellants are of the opinion that the primary characteristic of the conduct of Ben Ari and Ben Gvir is ongoing incitement to racism, and that this is also expressed in the platform of the Otzma Yehudit party, which opposes democratic values. It was argued that the declarations of the two were consistently and continuously translated into severe actions that were, in part, also carried out by other elements of the Otzma Yehudit party.

22.       Ben Ari and Ben Gvir relied upon the Election Committee’s decision and argued that the appeal should be denied. According to them, the evidence presented by the Appellants does not justify their disqualification. Their primary argument was that the platform and their public activity over the years apply to those who are “an enemy of Israel”, who are not loyal to the state, and does not apply generally to all “the Arabs” as such, and supports and encourages the emigration of anyone who is not loyal “and who is an enemy of the state”. According to them, the fact that this Court did not disqualify Marzel from participating in the elections shows that they, too, should not be disqualified.

23.       The Attorney General was of the opinion that Ben Ari should be barred from participating in the elections on the grounds of incitement to racism. He argues that the Appellants presented persuasive, clear, unequivocal, recent evidence, particularly since May 2018, in which Ben Ari is heard speaking in various films, some of which were uploaded to his Facebook page. According to the Attorney General, we are concerned with ongoing, consistent expressions over a significant period of time that are at the hard core of incitement to racism. It was argued that these statements show that Ben Ari refers to the Arab population in its entirety while calling for a violent denial of the rights of the Arab population of the State of Israel and for their systematic, targeted humiliation on the basis of their ethno-national identity.

            As for Ben Gvir, the Attorney General was of the opinion that despite the fact that the collection of evidence in his regard is very troubling, and that some of his statements come “dangerously close to the line that would bar a person from standing for election to the Knesset”, he should not be disqualified. According to the Attorney General, as opposed to the evidence presented against Ben Ari, the evidence in regard to Ben Gvir is insufficient to constitute the persuasive, clear, unequivocal evidentiary foundation required for disqualification. This, because most of the evidence is not from the recent past, and in view of Ben Gvir’s declarations and explanations in the current disqualification hearings.

24.       As stated in the judgment we issued without the reasoning on March 17, 2019, we decided by majority, against the dissenting view of Justice N. Sohlberg, to adopt the position of the Attorney General and grant the appeal in EA 1866/19 in all that regards Ben Ari, and to order his disqualification form standing as a candidate in the elections for the 21st Knesset, while we unanimously decided to deny the appeal in the matter of Ben Gvir.

 

Disqualification of a Candidate on the grounds of Incitement to Racism

25.       Racism is a well-known societal disease from which the human race has suffered since time immemorial. Racism shows its ugly face in hatred and incitement to hatred of the other, simply by reason of inborn traits or communal, religious, ethnic, or national affiliation. It strips people of their humanity on the basis of those affiliations and violates the basic right to human dignity and equality granted to all who are created in God’s image (HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General [14], para. 26 of the opinion of Justice S. Joubran) (hereinafter: the Torat Hamelech case)). The democratic State of Israel was established as the state of the Jewish people, which has experienced unparalleled racial persecution and suffering throughout the ages. Racism stands in absolute contradiction to the fundamental values upon which the state was established, and we, as Jews, have a special obligation to fight it uncompromisingly. Justice Z. Berenson addressed this in 1973 in HCJ 392/72 Berger v. District Planning and Building Council [15], 771, stating:

When we were exiled from our land and removed far from our country, we became victims of the nations amongst whom we lived, and in every generation, we tasted the bitterness of persecution, malice and discrimination only for being Jews “whose laws are different from those of any other people” [Esther 3:8]. With this bitter, miserable experience that seeped deep into our national and human consciousness, it might be expected that we would not walk in the corrupt path of the nations, and that with the renaissance of our independence in the State of Israel, we would be cautious and be wary of any hint of discrimination and unequal treatment against any law-abiding non-Jewish person [..] Hatred of foreigners is a double curse: it corrupts the image of God of the hater and inflicts evil upon the blameless hated. We must show humanity and tolerance to everyone created in God’s image (HCJ 392/72 Berger v. District Planning and Building Council, IsrSC 27(2) 764, 771 (1973); and see and compare: the Tibi case, p. 89; the opinion of Deputy President E. Rubinstein in the Torat Hamelech case, para. 38 and in the second Zoabi case (dissenting in regard to the result), para. 116).

26.       The Israeli legislature took up this mission following the elections for the 11th Knesset, which took place in 1984, and in the course of which, as noted, the disqualification of the Kach party was requested due to incitement to racism (the first Neiman case). Thus, Amendment no. 9 to Basic Law: The Knesset added sec. 7A, which sets out the causes permitting the disqualification of a list from standing for election, among them that of incitement to racism. The Explanatory Notes the bill explain in this regard that this cause is premised upon the recognition of the severity and danger of the phenomenon of racism” (Basic Law: The Knesset (Amendment no, 9) Bill), and in the plenary session for the second and third readings of the bill, the chair of the Constitution, Law and Justice Committee, MK Eliezer Kulas stated:

Democracy is the “credo” of the people and their way of life. One must be educated to democracy and democracy must be defended. In a democracy, there is no place for incitement to racism, no place for racism, no place for harming any person on the basis of race, religion, nationality, or sex. Racism and discrimination are contrary to the character of a democratic regime and the character of the Jewish people, which experienced what racism is on its own flesh (Transcript of the 118th session of the 11th Knesset, p. 3898 (July 31, 1985) (hereinafter: Transcript of Session 118 of the Knesset)).

            In regard to our special, historical duty as Jews to fight against racism, Prof. Gavison noted in her 1986 article (cited above):

The Israeli legislature added this cause for disqualification for various historical reasons. I view incitement to racism as a particular (severe) instance of value inconsistency. Incitement to racism is an extreme rejection of the obligation to the equal value of the person. On the basis of the lessons of history of the last century, in which Jews were innocent victims of such incitement, there is complete justification for designating incitement to racism as an express form of incompatibility with the fundamental values of the state (ibid., p. 161).

27.       In parallel to Amendment no. 9 of Basic Law: The Knesset, the Penal Law, 5737-1977 (hereinafter: the Penal Law) was also amended to add the offense of incitement to racism. “Racism” was defined in sec. 144A of the Law as “persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin”. Then Minister of Justice Moshe Nissim addressed the relationship between these two amendments in stating: “We must view both of these bills as of a piece, […] for the fundamental, proper, considered, and balanced treatment […] of phenomena with which the State of Israel cannot be reconciled” (Transcript of Session 118 of the Knesset, p. 3361), while it was noted in the Explanatory Notes of the amendment to the Penal Law that “the Hebrew heritage deems the dignity and value of the person, created in God’s image, and making peace among people as exalted values. […] Jewish heritage views the demeaning of human dignity as a serious offense” (Explanatory Notes to the Penal Law (Amendment no. 24) Bill, 5745-1985, p. 195).

            In the second Neiman case, President M. Shamgar addressed, inter alia, the definition of the term “racism” in the Penal Law and held that for the purpose of interpreting sec. 7A of the Law, there is no need to achieve a definitive definition of the term “incitement to racism”. President Shamgar also rejected the argument of counsel for the Kach list according to which “racism” refers only to biological distinctions, holding: “Different forms of persecution based on nationality are widely accepted today as a form of racism” (the second Neiman case, p. 192; for a discussion of the relationship between the offense of incitement to racism under sec. 144B of the Penal Law and sec. 7A, see: the first Zoabi case, para. 32; and compare Gavison, pp. 170-171).  Denunciation of incitement to racism, and the struggle against it in the legal field also found expression in other legislative acts (see, for example, sec. 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951; sec. 5 of the Political Parties Law, 5752-1992; sec. 42A of Basic Law: The Knesset; and sec. 39A(3) of the Municipal Authorities (Elections) Law, 5725-1965).

28.       Combatting incitement to racism and provisions banning political activity of various groups on that basis can also be found abroad. Thus, for example, the President of France is authorized to order the disbanding of political parties for various reasons, among them incitement to racism or other group discrimination. The President’s decision can be appealed to the French Supreme Administrative Court (Conseil d’Etat) (Gal & Kreminitzer, 43-45; Gregory H. Fox & George Nolte, Intolerant Democracies, 36 Harv. Int. L. J. 1, 27-29 (1995); European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, 16 (1999) (hereinafter: the Venice Commission Report)). Spanish law allows for declaring a political party unlawful if it systematically infringes fundamental freedoms and rights by encouraging or justifying the assault, exclusion or persecution of people on the basis of ideology, belief, faith, nationality, race, sex or sexual orientation (Knesset Research and Information Center, International Parallels to sec. 7A of Basic Law: The Knesset and their Possible Consequences for the Termination of the Tenure of Members of Parliament, pp. 8-9 (2006) (hereinafter: the RIC Report); Erik Bleich, The Freedom to be Racist?: How the United States and Europe Struggle to Preserve and Combat Racism, p. 103 (2011); Gur Bligh, Defending Democracy: A New Understanding of the Party-Banning Phenomenon, 46 VNTJL 1321, 1338 (2013); Venice Commission Report, p. 16). The Czech Republic’s Political Party Law of 1991 prohibits the registration of parties whose activities endanger the rights and freedoms of citizens, and in 2010, the Czech Workers’ Party was banned, inter alia, because of incitement to racism (Miroslav Mareš, Czech Militant Democracy in Action: Dissolution of the Workers’ Party and the Wider Context of this Act, 26(1) East European Politics & Societies 33, 43-44 (2010); Mapping “Militant Democracy”: Variation in Party Ban Practices in European Democracies (1945–2015), 13(2) Euconst. 221, 238-239 (2017) (hereinafter: Mapping Militant Democracy); RIC Report, p. 17; Venice Commission Report, p. 16). There are similar restrictions in Poland, Portugal, Belarus, Ukraine, Bulgaria, and Romania (Venice Commission Report, pp. 16-17; RIC Report, pp. 10-12). The Penal Code of the Netherlands allows for the disbanding of organizations that endanger public safety, and by virtue of this law, it was held that the Centre Party ’86 encouraged discriminatory propaganda against foreigners and was a danger to the public. It was, therefore, disbanded in 1998 (Defending Democracy, p. 1339; Paul Lucardie, Right-Wing Extremism in the Netherlands: Why it is Still a Marginal Phenomenon, presented at Symposium, Right-Wing Extremism in Europe, 4-5 (2000); Mapping Militant Democracy, p. 238; for a comprehensive survey of the existing arrangements in various countries in regard to the disqualification of political parties and candidates in general, see, e.g., the Tibi case, pp. 14-15; the first Zoabi case, paras. 10-11; Talia Einhorn, Proscription of Parties that have a Racist Platform under Art. 7A of the Basic Law: The Knesset (1993)).

29.       The ban upon organizations that incite to racism is also grounded in international human rights law, which includes provisions treating of the prohibition of organized racist propaganda activities. For example, sec. 4(b) of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by Israel in 1979) establishes, inter alia, that the signatory states “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination […]”. Based, in part, on that convention, in 2018, the European Parliament passed a resolution in regard to the growing violence by European political groups and parties with a neo-fascist, neo-Nazi, racist or xenophobic agenda, and called upon the EU member states to adopt a number of concrete measures for effectively combatting the activities of those groups (see: European Parliament Resolution of 25 October 2018 on the rise of neo-fascist violence in Europe (2018/2869(RSP)).

30.       In Israel, in 2016, the State Comptroller, Judge (emer.) Yosef Haim Shapira, published a report that examined the activities of the Ministry of Education to promote education for living in common and for preventing racism, and found that not enough had been done in this area over the last years, given the differences among sections of the Israeli population that lead to discord and strife. The report further noted that “in this complex reality, we have experienced serious phenomena of hatred, racism, violence, divisiveness, sectarianism, and intolerance over the last few years” and “racist and violent statements, discrimination, persecution and even shocking hate crimes have become not so infrequent occurrences […] while the social networks serve as a fertile ground for disseminating hatred of the other” (State Comptroller, Education to Common Life and for the Prevention of Racism – Special Comptroller’s Report, p. 8 (2016)).

31.       Indeed, the fundamental values of the State of Israel as a Jewish and democratic state instruct us to act decisively and uncompromisingly to eradicate racism in our midst. This message also sheds light on the danger that must be determined in this regard for the purpose of the probability test, if it be found that it should be applied to the causes for disqualification under sec. 7A of the Basic Law. In my view, the inherent danger of racist discourse derives from the fact that such discourse feeds and sets the stage for actions intended to realize the racist ideology, which in turn motivate and reinforce continued racist discourse. As Justice D. Beinisch stated in the Tibi case: “‘Racism’ in its ‘nuclear’ sense, comprises, by its very nature, a potential for danger whose probability is a real possibility” (ibid., p. 88). Indeed, racist discourse, particularly if it is systematic, significant, and prolonged, causes this societal disease to infiltrate, take root and spread. Therefore, it is necessary to send a clear, unambiguous message that inciteful racist discourse is illegitimate, particularly when expressed by a candidate for public office who shouts it from the rooftops. Such discourse must be left “outside the camp” in every civilized state, and all the more so in the Jewish state.

32.       The French-Jewish author and intellectual Albert Memmi, who was born in the Tunis ghetto in 1920, writes in the introduction to the Hebrew edition of his book Racism:

The Jewish people is always a minority, and therefore, like most of the world’s minorities, historically and socially exposed, and is therefore a very convenient target. (This is, incidentally, one of the justifications for Zionism: The need for Jews to cease to be a minority, at least in one place).

Perhaps today, things have already begun to change somewhat. The declarations of some statesmen and religious leaders […] have aroused the political conscience of the nations. All of these may cause us to believe that the hell that was the lot of the Jews in almost every place in the world will come to an end […] thanks to the existence of the State of Israel. However, we should not yet rejoice. Already at the end of the last World War, it was claimed that the horrors of the war made people allergic to racism; racist philosophies would completely perish. But our hope was too rash. Nowadays, there are people who once again dare to be racist, and yet again we see the writings on the wall that call for the expulsion of the Jews, whose citizenship again is put in question, and the stage is once more set for their humiliation. We must tirelessly return to the struggle and not stop, perhaps forever (Albert Memmi, Racism, 8 (1988) (hereinafter: Memmi).

            If, as Memmi states, we Jews are obligated to spearhead the ongoing, uncompromising struggle against racism – of which antisemitism is one of the oldest and most severe examples – we must be worthy of leading that fight, and we must expunge the dangerous disease of racism from our midst in the sovereign State of Israel.  This is a long fight that requires perseverance, and as Memmi warns: “We are all fertile ground for absorbing and germinating the seeds of racism if we let down our guard even for a moment” (ibid., p. 41).

            And now from the general to the specific.

 

The background for addressing the matters of Ben Ari and Ben Gvir

33.       The main claim against Ben Ari and Ben Gvir is, as noted, that they view themselves as the successors of Rabbi Meir Khane and of the ideology of the Kach list that he headed. As may be recalled, that list was disqualified from standing for election to the Knesset (see the second Neiman case), and other lists that presented themselves as its successors have also been barred from running for the Knesset in the past (see: the Kach case; the Movshovich case). It should also be noted that already in 1984, prior to the constitutional grounding of the causes for disqualification in sec. 7A of the Basic Law, the Court noted in the first Neiman case that the Kach list “propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel”. It should also be noted that in 1994, the Israeli Government decided to declare the Kach movement, the Kahana Chai movement, and associates and derivatives of those movements, as terrorist organizations under the Prevention of Terror Ordinance, and proceedings instituted in that regard were dismissed (see: HCJ 547/98 Federman v. Government of Israel [16]; and see: AAA 8342/02 Ben Gvir v. Commissioner of Police [17]).

34.       The Tibi case examined, inter alia, the question of barring Marzel from standing for election on the Herut list after the Committee decided to reject a request for his disqualification. It was argued that he supported the ideology of the Kach movement, and the Court was willing to assume that the evidentiary foundation presented did, indeed, ground Marzel’s involvement in the activities of that movement prior to the elections. However, in dismissing the appeal, the Court majority saw fit to grant significant weight to the fact that Marzel had declared that he had changed his views, and in the words of the judgment: “Mr. Marzel himself declares that he has recanted his prior views, and that he now seeks to act only in accordance with the law. He accepts the principals of democracy. He disavows the path expressed in the broad statements of Kach. He does not support violent actions” (the Tibi case, p. 60). Against that background, the Court dismissed the appeal in the Tibi case in regard to the disqualification of Marzel, although it had reservations as to the sincerity of his declarations.

35.       Ben Ari served in the 18th Knesset as a member of the Ihud Leumi faction, and Ben Ari and Ben Gvir ran on the Otzma LeYisrael list in the elections for the 19th Knesset in 2013. A request to bar the list from the elections was denied by the Central Elections Committee, but the list did not meet the electoral threshold. In the list’s election campaign for the 19th Knesset, posters were used that displayed the word “loyalty” in Arabic, and beneath it the phrase: “There are no rights without obligations”. The campaign was barred by the chair of the Elections Committee Justice E. Rubinstein, who ruled that it bore a racist message that was intended to portray the Arab community as disloyal to Israel. Prior to the elections for the 20th Knesset in 2015, the list changed its name from to Otzma Yehudit, and ran as part of the Yahad list, led by MK Eli Yishai. Leading up to the elections, the question of Marzel’s participation in that list arose again, after the Elections Committee decided to disqualify him. In a majority decision, the Court ruled that the disqualification decision should not be approved. It was noted that while Marzel came very close to the point of disqualification from participation in the elections, nevertheless, the claims by those who requested his disqualification were largely based upon newspaper reports and information obtained from the internet of low probative value, which were met by Marzel’s denial. The Court noted that Marzel “explained a significant part of the evidence submitted in his regard, and special weight should be given to his declarations in this matter […] These explanations cast doubt upon incitement to racism being a primary objective of Marzel’s activity” (emphasis original; ibid., para. 34). Marzel, Ben Ari and Ben Gvir did not serve in the 20th Knesset, as the Yahad list did not pass the electoral threshold.

36.       Did the Appellants succeed in presenting evidence in the matter of Ben Ari and Ben Gvir that establishes a cause for disqualification against either of them from running as candidates for the 20th Knesset by reason of incitement to racism? Given our approach that particular care should be taken, and that ordering that a list or candidate be barred from participating in the elections should be reserved only for extreme cases, we found that the evidence presented in the matter of Ben Gvir is insufficient for establishing a cause for disqualification, as noted, even under sec. 7A(a)(1) as argued by the Appellants. As opposed to this, the majority of the Court was of the opinion that the evidence presented justifies the disqualification of Ben Ari on the grounds of incitement to racism under sec. 7A(a)(2) of Basic Law: The Knesset.

 

Ben Ari

37.       In his arguments, the Attorney General referred to a very long list of evidence, focusing upon evidence from the period since the beginning of 2017, and emphasizing statements and actions by Ben Ari over the course of the year preceding the elections. This evidence includes statements by Ben Ari, in his own voice, in various film clips, that, as the Attorney General argues, present an unambiguous, clear and persuasive picture of incitement to racism against the Arab population in its entirety. We are concerned with a very detailed evidentiary foundation that comprises some 40 items in regard to statements and actions by Ben Ari. After reviewing that evidence and examining Ben Ari’s affidavit and statements before the Elections Committee, as well as his response to the appeal, his oral arguments before us, and the supplementary pleadings that he submitted, we are of the opinion that the arguments presented on Ben Ari’s behalf do not provide an explanation that would remove his actions and statements from the scope of incitement to racism that raises a cause of disqualification under sec. 7A(A)(2) of the Basic Law.

38.       Below, we will address the main elements of the evidentiary foundation presented:

            In November 2017, Ben Ari spoke at the annual memorial ceremony for Rabbi Kahane, while wearing a sticker on his jacket lapel that read: “Rabbi Kahane was right”. In the course of his speech, Ben Ari was heard saying the following:

There are enemies, there is a Jew, there is a knife, so they slaughter. Because they are given an opportunity, they slaughter […] We’ll give them another hundred thousand dunams, and affirmative action, perhaps they will love us. In the end, yes, they love us, slaughtered […] Rabbi Kahane taught us – there is no coexistence with them. There is no coexistence with them! (emphasis added).

            Further on, Ben Ari was heard referring to Bedouin citizens, stating:

We of Otzma Yehudit came out with a plan called Immigration and Building, Emigration and Peace […] After immigration and building, we will fulfil what God said […] Cast out that slave-woman, because whoever wants money will get money, whoever wants a bus will get a bus […] We will say and initiate here what has to be done so that we will wake up in the morning to a Jewish state […] The Bedouins have to be dealt with, but in the countries of origin. Return the land of the Negev to the Jewish people (emphasis added).

            Another piece of evidence presented by the Appellants is a video that Ben Ari posted on the Facebook page “Otzma Yehudit with Michael Ben Ari” (hereinafter: the Facebook page) on May 20, 2018. In the film, Ben Ari is seen giving a speech and saying the following:

The Arabs in Haifa are in no way different from the Arabs in Gaza […] In what are they different? In that here they are enemies from within […] here they carry out a war against us within the state […] it’s called a “fifth column” […] this dog should be called by its name, they are our enemies, they want to destroy us, there are, of course, loyal Arabs, but they can be counted as something like a percent or less than a percent, to our great despair, the overwhelming majority are full partners with their brothers in Gaza […] The Arab enemy has to be told that it’s one or the other, either you are loyal to the state or you should go to Syria […] There is no coexistence with them, they want to destroy us, that is their objective, that is their goal […] This is the fifth column here (emphasis added).

            According to Ben Ari, this was said following demonstrations in Haifa in support of the residents of Gaza “against the background of the balloon terror in the south of the country”. An examination of the Facebook page on April 17, 2019, shows that the video garnered 21,000 views, hundreds of “likes”, and additional hundreds of comments and shares.

39.       In July 2018, Ben Ari posted another video on his Facebook page, in which he is heard saying the following:

Do you know that the Bedouin marry Arab women from Gaza, from Hebron, who all come here. They get national insurance, they give birth in hospitals at our expense, their children later get every benefit at our expense […] they even serve in the army! These enemies the Bedouin serve in the army, let me repeat what I am saying – the enemy Bedouin serve in the army! They are seduced by money. I know from firsthand sources, from those who serve with them – they don’t trust them for a minute. There is an agenda that if they serve in the army, they will be loyal to us. No, they are not loyal to us! (emphasis added).

            This video received some 4,800 views and many comments.

            About a month later, Ben Ari posted another video on the Facebook page “Otzma Yehudit with Michael Ben Ari”, in which he appears saying, among other things:

First, we have to change the equation that anyone who dares to speak against a Jew doesn’t live. He doesn’t live! We don’t expel him, don’t take away his citizenship. He doesn’t live! A firing squad kills him, he is done away with, the way Arabs understand. That’s their language [] Tell me racism, racist? Whoever says that they are loyal underestimates them. “What? An Arab just wants to eat, just wants to make a living” – that’s not true, […] An Arab has nationalistic ambitions, he screams them, he shouts about them, he is ready to die for them (emphasis added).

            Ben Ari explained that this was said “against the background of the conduct in regard to Gaza and the solution that should be implemented against it”. This clip also received 9,300 views and hundreds of “likes”, comments and shares.

            In another video from the same month, Ben Ari is heard saying, among other things:

Over the last hours, in Tel Aviv, in the center of Tel Aviv […] our staunchest enemy has been arriving, and that is the internal enemy, the internal enemy, the enemy that we want to ignore, the enemy we want to hide our heads in the sand and not see, the enemy of Israeli Arabs (emphasis added).

            Ben Ari explained that this was said against the background of a demonstration by Arabs and Jews against what is called the “Nation-State Law” (Basic Law: Israel – the Nation State of the Jewish People) (hereinafter: The Nation-State Law)) in which PLO flags were waved and in which there were calls for the liberation of Palestine. He further explained that he was referring to Arabs who are not loyal to the State of Israel and who want to eradicate its Jewish character.

40.       After about a month, on Sept. 16, 2018, immediately following the stabbing attack at the Gush Etzion junction in which the late Ari Fuld was murdered, Ben Ari uploaded another video clip to his Facebook page, in which he states, among other things, the following:

[…] They murder because they have work. They murder because they want to inherit this land […] If there are infiltrators, it is the Arab enemy […] You need Shlomo Neeman [head of the Gush Etzion regional council] to ask all the business owners to fire today the terrorist of tomorrow. It is your responsibility, stop employing the murderers! Don’t employ these murderers! They get money from us and also come to murder us […] They murder us whenever they have the chance. The conclusion is that there is no coexistence. Look at the Arabs! Do they coexist amongst themselves? Every day in the news, murder in Rahat, murder in Reineh, murder in Umm al Fahm, attempted murder in Lod, murder in Jaffa. First of all, when speaking of coexistence, Rabbi Kahane would always say, let’s see the Arabs coexist amongst themselves (emphasis added).

            The clip received some 7,300 views, and hundreds of “likes”, comments and shares.

            At the end of November 2018, Ben Ari referred to the Arabs of the city of Lod in another video, this time on his Twitter account, accompanied by the caption: “The Arab conqueror of Lod continues to rage even today: The State of Israel is being conquered from within, Israel needs Otzma Yehudit!” In another video clip published on his Facebook page shortly after, Ben Ari referred to the members of the Lod municipal council as the “Arab enemy”. At the end of December 2018, Ben Ari published a clip on his Facebook page titled “Now in Afula Illit, a meeting with Otzma Yehudit loyalists”. In the clip, Ben Ari is seen conversing with a group of residents and stating as follows:

They wanted to bring you a clan of enemies into your neighborhood […] The State of Israel is being conquered from within, they are determined to conquer us from within […] By means of the word equality, the enemy will destroy us […] What is happening here is happening in Dimona, is happening in Lod. Lod is already a completely conquered city. But Afula? This criminal who opened the center for the enemy in the name of equal rights […] If, with the help of God, we enter the coalition, the first thing that we will do is the complete revocation of this thing called affirmative action. Do you understand that you are second class citizens because you are not Arabs? […] Most of them are willing to give up everything as long as they slaughter us. And what I am saying is not racism because, to my regret, it is the reality (emphasis added).

            Further on in the clip, Ben Ari is heard referring to the murder of the late Sheli Dadon, which occurred in 2014, saying as follows:

Did anyone ever hold a discussion of their character? On their treasonous character? […] The moment you give here, you give him affirmative action, you give him more work, he will raise a family here. His children will also be here, his children, fewer of my children will be here, and so […] I need a work plan. I need a work plan now a work a plan. […] This is not racism, it is fact, Arabs are the most migrant people in the world, they aren’t tied to any land […] That’s why they came here. Because there is work. […] One of the first things, our first condition for any discussions about a coalition, with the help of God, that they will discuss with us, is – revoking affirmative action (emphasis added).

41.       Some two months prior to the elections for the 21st Knesset, on Feb. 8, 2019, shortly after the murder of the late Ori Ansbacher by a Palestinian terrorist, Ben Ari uploaded another video clip to his Facebook page in which he stated, among other things, the following:

There is a murderous people here, a murderous nation. We owe the revenge, and the revenge is Otzma Yehudit […] Only the revenge of Otzma Yehudit in the Knesset […] They want to destroy us, they are looking for our neck. […] They want to slaughter us […] The revenge will come when Otzma Yehudit will be in the Knesset with twenty mandates. When we will be there, they will see that we are not playing with them like Lieberman. They will find themselves in their countries of origin, and the village they came from will become an airport. To fly them to their countries of origin (emphasis added).

            An examination of the Facebook page shows that the clip received some 20,000 views. In another video clip that Ben Ari posted the same day, he is heard saying, among other things,: “They are looking for our neck, looking for our daughters […] anyone who talks to you about coexistence is inviting the next murder […] we have to send our enemies back to where they came from […] our enemies, these murderers, we will send them to murder in Syria, in Lebanon, in Iran in Turkey” (emphasis added). This clip, which was, as noted, published close to the elections, received some 32,000 views, and hundreds of “likes”, comments and shares.

42.       The evidence presented, the main part of which we described above, indeed paints a clear, unambiguous, persuasive picture in which Ben Ari systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public. We are concerned with significant evidence that comprises disparaging expressions of extreme severity that continued over a period of some two years until very close to the elections for the 21st Knesset, and Ben Ari is heard saying these things in his own voice. This fact is of high probative value (the second Zoabi case). Ben Ari attributes negative characteristics to practically all of the Israeli Arab public, and calls them “murderers”, a “fifth column”, “enemies”, and of “treasonous character”. We are not concerned with a “slip of the tongue” in a moment of anger, but rather with a continuous, consistent series of statements that express hatred and scorn for the Arab population in its entirety as one that appears to understand only violence, with which one cannot coexist, and which must, therefore, be expelled, and as one that receives various social benefits “at our expense”. As noted in the Appellants’ response to Ben Ari’s supplementary pleadings, these publications were not removed. Ben Ari surpassed himself in comparing the Israeli Arab citizens of Haifa to dogs, stating that “the dog should be called by its name”. The use of dehumanization and attributing animalistic traits to people is known to be one of the most degrading propaganda mechanisms employed by racist regimes in order to mark a population as “inferior” and “sub-human”, and it endangers and seriously harms the dignity of the individuals who are members of that group as human beings.

            Ben Ari’s statements, and the not insignificant exposure they receive on social media, reflect the racist political program he espouses and which he intends to realize as a member of the Knesset. Certain statements that expressly call for violence are of particular severity (see, in this regard, his statements in the video clip published in August 2018, according to which “anyone who dares to speak against a Jew doesn’t live. He doesn’t live […] A firing squad kills him, he is done away with, the way Arabs understand. That’s their language”). It is important to note that publications on the social media platforms that Ben Ari chose to use by uploading recordings in which he is heard speaking in his own voice have great influential potential, as the social networks provide candidates for the Knesset quick channels of communication  to many communities without any journalistic mediation. In this manner, the social networks have, to a significant extent, replaced the historic “town square”, and serve as a platform for exchanging views, disseminating ideas, and garnering support among broad, diverse communities. The great accessibility of social networks, as well as the quick and effective dissemination of opinions and ideas by means of the digital platforms, can serve as a very effective means for spreading racist ideas and expedite the dissemination of those ideas (see, in this regard, in general: Yotam Rosner, The Role of Social Media in the Radicalization of Young People in the West, National Security in a “Liquid” World, 131, 135-137 (Institute for National Security Studies, 2019) (Hebrew)).

43.       In addition to the specific explanations that Ben Ari gave for the above publications, he further explained that he is not a racist, and that what he said was directed only at that defined segment of the population that is “enemy”, which includes anyone who is not loyal to the state, and in his own words: “The definition of the enemy is not made on a purely ethno-national basis, but on a political one. Anyone who identifies with the political objectives of the Arab national movement identifies himself as an enemy”. According to him, he does not refer to the Arab public as a whole, and any Arab who is “loyal to Israel” has a right to be a citizen. As opposed to that, whoever “is not loyal to the State of Israel as the nation state of the Jewish people […] should find his place outside of the state”. Ben Ari further clarified that the distinguishing characteristic, according to his approach, is “the relationship to the Zionist enterprise and to the State of Israel as the state of the Jewish people”. He further argued that the quotes attributed to him were fragmented and tendentious and explained that in saying that the Arab population of Israel is not loyal, he meant that he has not met “many loyal Arabs” (emphasis added). In the hearing before us, Ben Ari’s attorney noted: “In my estimation, there is an absolute majority that is not loyal” (Transcript of the hearing, p. 22, line 14), and in this regard, Ben Ari clarified in his supplementary pleadings that his statement that there is an absolute identity between ethno-national origin and loyalty was made in opposition to a statement that he attributed to former minister Naftali Bennet according to which 99% of Israeli Arabs are loyal to the state.

            Ben Ari apologized for his statements in regard to Bedouin soldiers. He pointed out that he “apologizes for them before those loyal soldiers who may have been hurt” and explained that his intention was “unequivocally only to those sons of women who came from the areas of the Palestinian Authority and Gaza”, and that he does not think that “all of the Bedouin population is disloyal” (paras. 32-33 of his affidavit). In the hearing before us, Ben Ari even emphasized that “if it sounds as if I am against the Bedouin, God forbid. If there is loyalty, there is loyalty, and I respect and honor that (hearing transcript, p. 29, lines 16-17). Ben Ari asked to clarify that his statement of Sept. 16, 2018, following the murder of Ori Fuld, in which he called to “stop employing the murderers” as referring only to terrorists, the words do not, of course, refer to all Arabs […] [only] to the security measures that should be adopted in regard to employing Arabs from the Palestinian Authority”. In his response to the appeal, Ben Ari explained that his statements in the Afula meeting were made “against the background of the murder of a resident of my community Dadon”, and in his supplemental pleadings, Ben Ari added that even if what was said in that meeting “grate upon the ear, they do not rise to the level of a ‘critical mass’”. In his affidavit, Ben Ari emphasized that “I am not saying that all Arabs are like that [of a murderous, treasonous character], or that this character derives from ethno-national origins. But this murderous violence is characteristic of the national struggle of the Arab national movement since the beginning of the 20th century” (para. 47 of his affidavit). In the hearing before us, Ben Ari added another reason for his statements, noting that his words in regard to the sale of apartments to Arabs in Afula should not be understood as racial discrimination, and he referred in this regard to Amendment no. 8 of 2011 to the Cooperative Societies Ordinance in the matter of the considerations that may be taken into account by an admissions committee of a residential community (hereinafter: the Admissions Committee Law). Ben Ari explained what he said after the murder of Ori Ansbacher in a supplementary notice in which he explained that he “referred to the murder, and that was its only context”. In his affidavit, he added that his words might sound inclusive in regard to people on the basis of ethno-national origin, but that his intention was “to those who, from an Arab national position, seek to murder Jews against a nationalistic background, and as part of what they see as a national struggle, and who support and identify with those acts (para. 50 of the affidavit). In the hearing before us, Ben Ari’s attorney added that “there is never any justification for harming individuals on the basis of the nationality” (Transcript, p. 15, line 6), and that Ben Ari’s statements about the Arab public were always made in the context of a specific event” (ibid., line 12).

            Lastly, Ben Ari sought to emphasize that presenting broad positions is not exclusive to him but is rather a common practice of candidates for the Knesset, and even of serving members of the Knesset.

44.       I examined Ben Ari’s arguments and explanations and I do not see them as sufficient to change my conclusion. While Ben Ari repeatedly states that he is not a racist, unfortunately, his actions and statements, which I have summarized above, are diametrically opposed to that declaration. The question I pondered was what positive weight should be afforded to the fact that Ben Ari already served as a member of the Knesset (in 2009 - 2013). This fact does, indeed, constitute a consideration in his favor, but it is of limited weight inasmuch as Ben Ari worked toward the advancement of his racist ideology even in that period, and tearing the New Testament to shreds and throwing it in the waste basket in the Knesset was just one example of that (for other actions and expressions, see paras. 79-91 of the notice of appeal). In any case, as the Attorney General emphasized in presenting his position, the evidentiary foundation from the recent past, and primarily from the year preceding the elections, shows that a “critical mass” of evidence has amassed that unambiguously, clearly, and persuasively testifies to systematic incitement to racism by Ben Ari. The summary of the case law presented above shows that the Court has attributed significance and weight to explanations and clarifications presented by the candidate, to which the decisions in the matter of Marzel testify (the opinion of President A. Barak in the Tibi case, p. 60, and that of Justice I. Englard at p. 66; the second Zoabi case, para. 34, and as opposed to that, see the dissenting opinion of Deputy President E. Rubinstein at para. 103). However, in the instant case, the explanations provided by Ben Ari are not persuasive and pale before the enormity of the racist statements that he repeated again and again in his own voice, and which he preached in public at rallies in which he participated and on social networks. Other than an apology, that was only partial, in the matter of Bedouin soldiers, Ben Ari did not apologize for his statements and did not retract them. He tried to give his words a post facto interpretation, but that, as stated, was not persuasive because it is not consistent with the meaning and natural context of what was said. Thus, for example, Ben Ari tried to explain that he does not speak about the Israeli Arab public in general but only of those who are “enemies”, but the recordings repeatedly show that the reference is to the entire Arab public, or at the very least, to its overwhelming majority – 99% of that public – as disloyal to the state. Ben Ari himself notes in one of those recordings that he has not met Arabs who are loyal to the state (see, for example, the video clip of Ben Ari from Nov. 7, 2017, from 6:30). Another explanation proposed by Ben Ari in regard to some of his statements was that they were made immediately after terrorist incidents and attacks against Israelis. The pain, the anger, and even the will for revenge aroused at such times is understandable. However, it is important to bear in mind that fear and a sense of threat have always been the fuel that fires racist ideologies, and one must, therefore, take care not to harness understandably harsh feelings that arise at times of distress and pain and exploit them to advance such ideologies. The explanations that Ben Ari presented in an attempt to equate the Admissions Committee Law – with all the clear limitations it establishes – and the things he said in regard to the sale of apartments to Arabs in Afula have no place here inasmuch as the two cannot be compared (and compare: LCA 6709/98 Attorney General v. Moledet [18]) (hereinafter: the Moledet case)).

45.       In summation, this chapter states that the Court’s approach that the causes for disqualification under sec. 7A of Basic Law: The Knesset are to be narrowly construed and exercised in the most extreme cases, was and remains the starting point for every discussion of these causes. However, we are persuaded that the broad, up-to-date evidentiary foundation presented in the instant case gives rise to a cause that disqualifies Ben Ari from standing as a candidate in the elections for the 21st Knesset due to incitement to racism under sec. 7A(a)(2) of the Basic Law. Given this conclusion, there is no need to examine the additional cause for disqualification under sec. 7A(a)(1) of the Basic Law.

            Indeed, it is not always easy to draw the line separating racial incitement from the expression of an opinion – as severe and harsh as it may be – that is entitled to protection under the fundamental right to freedom of expression in general, and to freedom of political speech in particular. This is particularly the case when the former also concerns the right to vote and to be elected. Nevertheless, in the instant case, and given the evidentiary foundation we presented, it is absolutely clear that Ben Ari’s statements crossed the line, and thus the conclusion reached. It would be appropriate to conclude this chapter with another quote from Memmi’s book Racism:

One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask […] To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?) […] The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity (ibid., p. 116).

 

Ben Gvir

46.       In the matter of Ben Gvir, the Appellants presented a line of evidence, including evidence concerning criminal proceedings against him that, in part, concerned racist publications and support for the Kach movement that was declared a terrorist organization. However, the overwhelming majority of the evidence presented concerned acts and statements form many years ago, part from as long ago as the 1990s, and only a small part concerned the last few years. After examining the arguments raised by the Appellants and those of Ben Gvir, we concluded, as noted, that the evidence presented is not sufficient to ground a cause for disqualification from standing as a candidate in the elections for the 21st Knesset, given the rule that we addressed above in regard to the strict evidentiary threshold required to substantiate disqualification under sec. 7A of the Basic Law.

47.       The up-to-date evidence to which the Appellants and the Attorney General referred in regard to Ben Gvir should not be taken lightly. It includes statements he made in November 2017 at a memorial service for Rabbi Kahane, whose praises he also enumerated in an interview on Feb. 21, 2019. Ben Gvir made similar statements in a television interview in Nov. 2018 that he published on his Facebook page at that time. Those statements there were certainly very harsh and troubling, and there is substance to the Attorney General’s opinion that they come dangerously close to the line that would bar him from running in the Knesset elections. In this regard, it would not be superfluous to return to the words of Justice M. Elon in the second Neiman case, in 1989, in regard to the Kach list and Rabbi Kahane’s ideology:

The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism – its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image, and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society (ibid., p. 302).

            These trenchant remarks are applicable here, as well. However, Ben Gvir, who was admitted to the bar in 2012, took pains to emphasize and explain that while he is in favor of “fighting against the enemies and against any who seek to erase the state, harm its Jewish character, and destroy it (whether such actor is Jewish or whether Arab)”, he “opposes acting in any violent or unlawful manner” (para. 43 of Ben Gvir’s affidavit). He further noted that over the last years, he has changed his ways and he acts by legal means and initiates legal proceedings where he deems appropriate. These explanations bear weight and should be granted significance, and this, together with the current evidentiary foundation presented in his matter, which, as noted, does not rise to the level of a “critical mass” under the strict criteria established in this regard in the case law, led us to the conclusion that the appeal in the matter of Ben Gvir, on both heads, should be dismissed.

 

EA 1876/19 Ra’am-Balad List v. Central Elections Committee for the 21st Knesset

48.       The Ra’am-Balad list is composed of two parties – Ra’am and Balad – and two requests for its disqualification were filed by the Likud and MK David Biton, and by Ben Ari and Ben Gvir. The disqualification requests were based upon the cause in sec. 7A(a)(1) of the Basic Law – negation of the existence of the State of Israel as a Jewish state, and sec. 7A(a)(3) of the Basic Law – support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The requesting parties focused primarily on the activities of members of Balad, and it was argued that they oppose the Jewish people’s right to self-determination in the State of Israel and act to negate the core characteristics of Israel as a Jewish state. It was further argued that members of the list support the Hezbollah and Hamas terrorist organizations and violent acts against the police and IDF soldiers. The Elections Committee decided by a majority of 17 for and 10 against to disqualify the Ra’am-Balad list from participating in the elections for the 21st Knesset, and thus the current appeal.

 

Arguments of the Parties

49.       Ra’am-Balad argued that the Elections Committee’s decision should be annulled, and emphasized that most of the evidence presented in its regard was already adjudged and examined in prior proceedings against the Balad list or its members, including the evidence concerning their support for the idea of “a state of all its citizens”, and the Court held that the evidence did not substantiate a cause for disqualification. It was further argued that the Committee’s decision leads to a problematic result that also disqualifies the members of the Ra’am party on the list from standing for election even though no significant evidence was produced against them that would justify their disqualification. According to Ra’am-Balad, the Committee reached its decision without any material debate, and it ignored the decisions of this Court and the opinion of the Attorney General; the evidence against it does not relate to actions or activity that substantiate a cause for disqualification; and the evidentiary foundation rests upon articles form the internet of low probative weight and whose content was denied by the members of the list. Ra’am-Balad further argued that due to its political composition, the Elections Committee is not authorized to rule upon the causes for disqualification under sec. 7A of the Basic Law, and that the legal arrangement that grants it that authority is disproportionate and infringes the principle of equality of the elections as established in sec. 4 of the Basic Law, and the right to vote and to be elected.

50.       The Attorney General was of the opinion that the appeal of Ra’am-Balad should be granted and noted that the disqualification requests were indeed largely founded upon evidence from prior to the elections for the 20th Knesset, and part of it had already been examined in prior proceedings before this Court. Whereas, it is argued, the new evidence submitted relies largely upon articles form the internet that were denied by the members of the list and that are of low probative value. It was further emphasized that most of the evidence pertains to persons who are no longer on the list, among them: Basel Ghattas (hereinafter: Ghattas) and Said Naffaa, or who are in a unrealistic slot on the list, like Hanin Zoabi and Jamal Zahalka (hereinafter: Zahalka), and are not relevant to the members of the list and its new candidates who are in realistic slots. In all that relates to the cause of support for armed struggle of a terrorist organization, the Attorney General was of the opinion that significant weight should be accorded to the affidavits submitted by the representatives of the list which note that they reject violence and that they never called for its use. As for the cause of negation of the existence of the State of Israel as a Jewish state, the Attorney General noted that the consistent position of the case law of this Court in regard to Balad and its members is that there is no cause for disqualifying them from participating in the election for the claims have been raised once again in this proceeding. However, the Attorney General, without deciding the issue, explained that were the Balad party running independently for the 21st Knesset, there would be reason to carefully consider its disqualification in view of the Basic Law: A State of all its Citizens Bill submitted to the 20th Knesset by members of Knesset from the Balad party, and due to the content of that bill. But the Attorney General added that since the requests refer to the disqualification of the Ra’am-Balad list, and because the law does not allow for disqualifying half of a list, there is some difficulty in disqualifying the entire list due to the actions of members of the Balad list, who for the most part are not, as noted, candidates in realistic slots on the list, while no significant arguments were raised in regard to the Ra’am party and its members. On the constitutional level, in regard to the matter of the Elections Committee’s authority to address the causes for disqualification under sec. 7A of the Basic Law, the Attorney General argued, inter alia, that given the time constraints established in the Elections Law for deciding upon an appeal, the issues should not be taken up in the framework of the current proceedings.

51.       Respondents 2-3, who submitted the requests for disqualification, relied upon the decision of the Elections Committee and argued for dismissal of the appeal. In their view, the fact that the Ra’am-Balad list includes new candidates does not alter the fact that the ideology of the members of the Balad list negates the character of the State of Israel as a Jewish state and the fact that members of the party support terrorist groups like Hezbollah and Hamas. The Knesset, which was joined as a Respondent to the appeal due to the constitutional arguments, was of the opinion that these arguments should be dismissed. It emphasized that the claim of lack of authority was not raised before the Elections Committee, that it is being raised long after the said authority was bestowed upon the Committee by law, and like the Attorney General, the Knesset added that the elections proceedings are not appropriate for examining this issue.

 

Negation of the Existence of the State of Israel as a Jewish State

52.       The starting point for examining the evidentiary foundations presented by the Plaintiffs in regard to the disqualification of Ra’am-Balad on the cause of negation of the existence of the State of Israel as a Jewish state is grounded in the criteria established in the case law, which we surveyed at length above. These criteria were addressed and even applied in the past in regard to the Balad list and its platform (see the Tibi case and the Balad case), and those cases addressed, inter alia, the question whether a party that calls for the realization of the principle of “a state of all its citizens” is disqualified from standing for election to the Knesset. In the Tibi case, the Court answered in the negative, and held that calling for the realization of that principle does not necessarily imply the negation of the State of Israel as a Jewish state. The Court held that as long as that call is intended to guarantee equality among citizens, it should not be interpreted to be a call that negates the existence of the State of Israel as a Jewish state. As opposed to that, “if the purpose of Israel being a ‘state of all its citizens’ is intended to mean more than that, and it seeks to undermine the rationale for the creation of the state and its character as the State of Israel as the state of the Jewish people, then that undercuts the nuclear, minimal characteristics that characterize the State of Israel as a Jewish State” (the Tibi case, pp. 22-23, 41).

53.       In the Tibi case, the Court concluded that, despite the fact that Balad’s platform expressly called for realizing the principle of “a state of all its citizens”, and despite the additional evidence presented in open court and in camera, taken in its entirety, what was presented did not ground a “critical mass” of persuasive, clear and unambiguous evidence that would justify the disqualification of Balad for the cause argued, nor the disqualification of Bishara – then head of the list – whose disqualification was requested in that same proceeding. It would not be superfluous to note that most of the evidence presented in that matter in regard to Balad concerned actions and statements by Bishara. It was argued in regard to Bishara that, inter alia, in various events and party conferences he expressed himself in a manner that reflected a view according to which Jews do not have a right to self-determination. It was further argued that Bishara supported the approach that recognized the right of return of Arabs to Israel and a struggle against Zionism, and that he even tabled a bill for the abolition of the status of various Zionist institutions.

54.       After examining all of that evidence, the Court concluded in the Tibi case that even though Bishara’s objectives are a dominant objective of his activity and not merely a theoretical concept but rather an objective with political potential that he had put into practice, his actions did not negate the minimal, nuclear definition of the State of Israel as a Jewish state. It was held that the Court was not presented with persuasive, clear and unambiguous evidence against Bishara in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law, and consequently, not against the Balad list. That was so inasmuch as Bishara recognized the right of every Jew to immigrate to Israel and did not argue that the Law of Return, 5710-1950 (hereinafter: The Law of Return) should be revoked, did not deny the centrality of Hebrew as the language of the state, along with Arabic as an official language, and did not oppose Israel’s holidays and symbols, as long as the cultural and religious rights of the Arab minority are recognized.

55.       As noted, the Tibi case concerned the elections for the 16th Knesset, and some eight years later, in the Balad case, the Court addressed disqualification proceedings filed against the Balad party in anticipation of the elections for the 18th Knesset. That matter concerned the decisions of the Elections Committee to disqualify the Balad list, as well as the Ra’am-Ta’al list that also sought to contend in those elections. The causes for which the Elections Committee decided to disqualify the Balad list were, as in the present case, the causes under secs. 7A(a)(1) and (3) of the Basic Law. At that point, Bishara no longer headed the list. He had fled the country, and it was claimed that the reason was that a criminal investigation was being conducted against him for suspected involvement in security offenses (the Balad case, para. 9). Inter alia, the evidence presented in that matter to ground the cause of negation of the existence of the State of Israel as a Jewish state included Balad’s platform, which was published on its internet site, and an article by Zahalka, who was then the party leader, which described the party’s vision as striving for a State of Israel as “a state of all its citizens”. In addition, public statements of party members made in various situations, as well as articles from which, it was argued, one could discern an expression of support of the Balad members for its founder Bishara even after his flight from Israel, were presented. The Court granted Balad’s appeal and held that there was no cause for disqualification from contending in the elections for the 18th Knesset. The Court’s decision rested, inter alia, upon the opinion of the Attorney General at the time, who noted that the evidence presented against Balad, taken in its entirety, was inferior to the entirety of the evidence presented against that party in the Tibi case. The Court held:

After examining all of the evidence presented to us, and bearing in mind the criteria and principles outlined in the matter of Balad [the Tibi case], the entirety of the evidence presented to this Court in that matter and its concrete findings there in regard to them, we did not find that the disqualification requests that are the subject of this appeal in regard to Balad rest upon a sufficient evidentiary foundation to give rise to a cause for disqualifying the list from contending in the elections for the Israeli Knesset (ibid., para. 22).

            This conclusion reached by the Court in the Balad case concerns the two causes for disqualification advanced there. We will further address the additional cause under sec. 7A(a)(3) below.

56.       Another disqualification proceeding concerning the members of the Balad party was addressed in 2012 in the first Zoabi case, which examined the issue of the disqualification of Zoabi from standing for election for the 19th Knesset on the Balad list. In that proceeding, the Court examined the evidence regarding Zoabi’s support for the principle of “a state of all its citizens”, and was of the opinion that the evidence presented no materially new or different grounds from what had been presented in the Tibi case and the Balad case that would justify a different conclusion. The Court arrived at a similar result some three years later in the second Zoabi case. In that matter, the Court examined, inter alia, whether statements in which Zoabi was heard saying “there was no justification for the establishing of the State of Israel from the start. Now that there are generations of Jews who were born in it, I want to live with them but not in a Jewish and racist state”. The Court also examined an article that reported on a demonstration in which Zoabi participate, entitled “Demonstration against the Crimes of the Occupation”, and a recording in which Zoabi is heard shouting insults at the police. The Court held that there were no grounds for disqualifying Zoabi’s candidacy in the elections. That was so because the desire for the establishment of a state of all its citizens and “striving for an end to the occupation does not necessarily mean a negation of the Jewish foundations of the State of Israel.”

57.       The current proceeding, in which the Ra’am-Balad list is appealing its disqualification by the Elections Committee from contending in the elections for the 21st Knesset, is another link in the chain of similar proceedings on the same matter. In all that concerns the cause for disqualification under sec. 7A(a)(1) of the Basic Law, the evidence presented by the petitioners for disqualification includes various statement by members of Balad form the past and present, among them a quote from an interview conducted by Dr. Mtanes Shehadeh, chair of the Balad list, and number two on the Ra’am-Balad list (hereinafter: Shehadeh), in which he says, among other things, that Bishara was “an important activist in Balad’s leadership at the time, and contributed greatly to political discourse […] in Israel”, and is later quoted in that interview as saying that “the flag and national anthem do not represent us”. A report from the YNET website was also presented according to which MK Talab Abu Arar, who is a member of the list, and others met with the president of Turkey. Additional evidence presented concerns an interview with the former general secretary of Balad in which he called upon Israeli Arabs not to vote in the Knesset elections and to act for the realization of the principle of “a state of all its citizens”, as well as evidence concerning past activities of members of Balad, including statements by Zoabi from 2009 and past activities of Bishara.

            This evidence is not materially different from the evidence presented in the previous proceedings that we surveyed, which concerned proceedings for the disqualification of Balad and members of its list, as far as the cause of negation of the State of Israel as a Jewish state is concerned. Moreover, not only has most of the evidence presented in this proceeding been examined in previous proceedings and found insufficient in accordance with the criteria outlined for the said cause, but as noted, a not insignificant part of that evidence concerns persons who are no longer candidates on the Ra’am-Balad list for the elections for the 21st Knesset, or are not candidates in realistic slots on that list. That being the case, we cannot accept the argument that the Ra’am-Balad list should be disqualified from running in the elections for the 21st Knesset due to actions and statements attributed to Zoabi when she herself was not disqualified at the time in the first Zoabi case and the second Zoabi case for the same actions and statements, especially when she is located in the 118th slot on the current list. The argument in regard to ongoing connections of some kind or another between members of the list and Bishara was argued in a general manner and does not suffice for changing the conclusion as to the insufficiency of the evidence presented. As for the majority of the candidates on the Ra’am-Balad list for the 21st Knesset who hold realistic slots, with the exception of Shehadeh, no evidence at all was presented to ground the cause for disqualification, and as explained above, the evidence presented in regard to Shehadeh is based upon quotes from media interviews and reports on various internet websites whose probatory weight has already been held to be low (the second Zoabi case, para. 34), and Shehadeh has declared that his words were presented in a “distorted, misleading manner, and was accompanied by incorrect analysis” (para. 9 of the affidavit submitted by Shehadeh to the Elections Committee).

58.       The primary up-to-date evidence presented to us in this proceeding in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law is the Basic Law: A State of all its Citizens Bill, which members of Knesset from the Balad party sought to lay on the table in the 20th Knesset. At the end of the day, that bill was not presented due to a decision by the Knesset presidium of June 4, 2018 not to approve its introduction, based upon the opinion of the Knesset’s legal advisor. A petition filed in this regard was rendered moot and dismissed in limine when it was decided to dissolve the 20th Knesset (HCJ 4552/18 Zahalka v. Speaker of the Knesset [19]). The purpose clause of the bill established that it was intended to ground “the principle of the equal citizenship of every citizen, while recognizing the existence and the rights of the two national groups, Jewish and Arab, living within the borders of the state that are recognized by international law” in a Basic Law. The bill also redrafted the conditions for obtaining Israeli citizenship, such that obtaining citizenship by virtue of the principle of return would be annulled (see sec. 5 of the opinion of the Legal Advisor of the Knesset of June 3, 2018). In addition, new state symbols and a new anthem should be established in accordance with the principles set forth in the bill (on the significance of this provision as negating the principle according to which the “primary symbols” of the state should reflect the national rebirth of the Jewish people, see sec. 5 of the opinion of the Legal Advisor of the Knesset, and see what was stated in this regard in sec. 6 of the bill in regard to the status of the Hebrew language as the primary language of the state). If that were not enough, the petition filed by the members of Bald in the 20th Knesset against the decision of the presidium to prevent laying the bill on the Knesset table explicitly stated that the said bill accorded with Balad’s party platform.

            It would seem undeniable that the said bill, in all its parts, expresses a negation of the most minimal, nuclear characteristics of the State of Israel as a Jewish state as the Court explained in the Tibi case. The fact that the step taken by the members of Balad in this regard was democratic – tabling a bill – does not lead to a different conclusion. This was indeed a significant action by the members of Knesset representing Balad in the 20th Knesset attempting to realize – by means of a legislative bill – a political program and worldview that negates the existence of the State of Israel as a Jewish state. It would appear that Ra’am-Balad was aware of the significance of this evidence, but argued that it should not be given decisive weight in the current proceeding, inter alia, given the fact that it is only one piece of evidence (or at most two, if the petition constitutes a separate piece of evidence in this regard), and given the background for submitting the bill and that it was submitted in response to the legislative proceedings on the Nation State Law. These arguments attempt to minimize the significant weight of this evidence, and I agree with the position  of the Attorney General that had Balad run as an independent list comprising members of Knesset who had served in the 20th Knesset and who presented the bill, and who now sought to stand for re-election to the 21st Knesset, there would be grounds for seriously considering whether these two pieces of evidence show that Balad had crossed the divide delineated in the Tibi case that separates between espousing the principle of “a state of all its citizens” in order to achieve equality and seeking to negate the minimal, nuclear characteristics of the State of Israel as a Jewish state. If we were standing at that junction, we would also likely be required to consider the issue of the applicability of the probability test in applying the cause for disqualification under sec. 7A(a)(1) of the Basic Law, which was left for further consideration in the Tibi case and in the ensuing decisions. However, the list whose disqualification was requested is a joint list of Ra’am-Balad and we agree with the opinion of the Attorney General that his fact is significant for examining the causes for disqualification. In addition, it must be borne in mind in regard to the representatives of Balad on the list that none of those placed in realistic slots were among those who submitted the bill on Balad’s behalf. Moreover, in the affidavit he submitted to the Elections Committee, Shehadeh declared that he himself and all of Balad’s candidates for Knesset are committed to the principle of “a state of all its citizens” that is presented in the party’s platform as examined and approved in the Tibi case, the Balad case, and in the first and second Zoabi case (para. 2 of the affidavit). Given all of the above, and given the strict criteria outlined in the case law for the disqualification of a list from standing for election to the Knesset, we have concluded that there are no grounds for disqualifying the Ra’am-Balad list on the cause of negation of the existence of the State of Israel as a Jewish state.

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

59.       The Election Committee’s decision that “the Ra’am-Balad list is barred from participating in the elections for the 21st Knesset” does not state whether the list’s disqualification is based upon both of the two causes in secs. 1A(a)1 and (3) of the Basic Law or only upon one of them. In the future, even if the Committee does not state the reasons for its decision, it may be appropriate that it at least note what cause grounded its decision on disqualification. In any event, for the purposes of this appeal, I will assume, as did the parties, that the disqualification rested upon both causes.

            The prevailing rule established that in order to prove that a list or a candidate seeking to stand for election supports armed struggle by an enemy state or a terrorist group, it must be shown that it is the primary objective of the list and that it actually works toward realizing it. In all of the past proceedings in the matter of both Balad and Ra’am, it was held that the evidence presented in this regard does not amount to a “critical mass” that would justify disqualifying either of the lists or any of candidates on those lists on the basis of the cause grounded in sec. 7A(a)(3) of the Basic law (EA 2600/99 Erlich v. Chair of the Central Elections Committee [20] (hereinafter: the Erlich case); the Tibi case; the first Zoabi case; the second Zoabi case). Those holdings bear consequences for the matter before us inasmuch as the evidence presented to ground the cause of support for armed struggle is immeasurably less than that presented in the above cases. The Petitioners for disqualification primarily based their arguments upon pictures of Shehadeh visiting a former security prisoner and upon quotes from an interview in which it is alleged that he refused to refer to Hamas as a terrorist organization and added that “any struggle against the occupation is a legitimate struggle”, and that he “is for a struggle against the occupation. People have a right to fight against the occupation. If there are people who are oppressed, they have a right to fight”. In addition, an interview with MK Abd Al Hakeem Haj Yahya, who holds the second slot in the Ra’am party, was presented in which he referred to an attack on the Temple Mount in July 2017 in which Israeli police were murdered. According to the petitioners for disqualification, other statements by members of the list in 2009 and 2011 demonstrate a support for terrorism. The petitioners for disqualification further added the fact that former Knesset members of Balad met with the families of terrorists who were killed while carrying out terrorist attacks; Zoabi’s participation in the “Mavi Marmara” flotilla; the meeting held by former Balad Knesset members with Bishara in 2014; and the conviction of former Balad Knesset member Ghattas for security offenses.

60.       We reviewed the above evidence, and we are not of the opinion that it constitutes a body of persuasive, clear and unambiguous evidence that shows that support for an armed struggle by a terrorist organization is a central, dominant purpose of the Ra’am-Balad list or of any of the parties that compose it. In addition, we do not think that evidence was presented that meets the evidentiary threshold for proving that this list acts for the realization of such an armed struggle in a real and consistent manner. This is an a fortiori conclusion given that the evidence presented in the prior proceedings addressed by this Court was far more significant than that presented before us, and it was nevertheless held that it was insufficient to ground a cause for disqualification under sec. 7A(a)(3) of the Basic Law. Moreover, a significant part of the evidence presented to us refers to persons who do not appear on the Ra’am-Balad list for the 21st Knesset, and some of it was already examined in the previously noted cases. The petitioners for disqualification presented various statements by Shehadeh from which one might infer support for violent activity, but that is not the only possible interpretation and the doubt acts to the benefit of the conclusion that would permit the list to participate in the elections (the second Zoabi case, para. 73). In addition, weight should be given in this regard to the fact that Shehadeh made it explicitly clear in his affidavit that he does not support violent activity and that Balad’s approach is “democratic and employs legal means. We have never called for the use of violence, and none of the candidates on our current list have ever been convicted of any criminal offence”. It was further noted that statements expressing opposition to the Israeli policy in Judea and Samaria were examined by this Court in the past, and it was held that they do not, in and of themselves, give rise to a cause for disqualification (the second Zoabi case, para. 67).

61.       In conclusion, for the reasons stated above, I was of the opinion that we should grant the appeal in EA 1876/19, that the disqualification decision by the Elections Committee should be overturned, and we should order that the Ra’am-Balad list is not barred from participating in the elections for the 21st Knesset. I did not find reason to address the arguments raised by the Ra’am-Balad list in regard to the authority of the Elections Committee to rule upon the causes for disqualification. The conclusion that we reached in this appeal renders those arguments moot, but in my view, the fact that those arguments were never raised before the Elections Committee suffices to dismiss them in limine.

 

EDA 1806/19 Lieberman v. Cassif

62.       At the request of the Yisrael Beiteinu faction and Knesset members Avigdor Lieberman and Oded Forer, the Elections Committee decided to disqualify Cassif from participating in the elections for the 21st Knesset as a candidate on the Ra’am-Balad list. The Committee presented that decision for the Court’s approval in accordance with sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset.

 

Arguments of the Parties

63.       The request for Cassif’s disqualification rests upon two causes: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The evidence adduced in support of the request consisted primarily of four publications and newspaper articles – mostly from the internet – that show, according to those requesting disqualification, that in his statements, Cassif rejects the Jewish character of the State of Israel and calls for the changing of the state’s symbols and anthem, and for revoking the Law of Return. It is also argued that the evidence presented shows that Cassif supports the armed struggle of the Hamas terrorist organization against the state. This, inter alia, because he compared senior government leaders to Nazi war criminals, and because other statements testify, in their opinion, that Cassif believes that attacking soldiers does not constitute terrorism and that Israel should be fought because of its serious crimes against the Palestinian population.

64.       Cassif argued on his behalf that the evidence presented by those requesting the disqualification does not justify his disqualification from running in the Knesset elections. That is particularly so given that the request for disqualification is based, so he argues, upon distorted and tendentious quotes and relies primarily upon one interview with him in which he primarily presented academic ideas and not his political philosophy. As for the arguments that portray him as rejecting the Jewish character of the State of Israel, Cassif emphasized that he recognizes the right of the Jewish people to self-determination alongside an independent Palestinian state, while ensuring full equal rights to all residents of Israel. As for the arguments portraying him as supporting the armed struggle of Hamas against Israel, Cassif claimed that the various comparisons that he made between the State of Israel and Nazi Germany are not relevant to grounding a cause for disqualification, and that he opposes all forms of violence against any person. Similar to the arguments raised by the Ra’am-Balad list, Cassif also raised constitutional arguments in regard to the authority of the Elections Committee to examine and rule upon the disqualification of lists and candidates under the causes grounded in sec. 7A of the Basic Law, and I will already state that for the reasons mentioned in the previous chapter concerning the appeal of Ra’am-Balad, I have not found it necessary to address these arguments in the approval proceedings in regard to Cassif.

65.       The Attorney General was of the opinion that there is no cause for barring Cassif from running in the elections for the 21st Knesset because no “critical evidentiary mass” was presented that would justify it, noting that the evidentiary grounds adduced in support of disqualification was meager in both amount and quality.

 

Negation of the Existence of the State of Israel as a Jewish State

66.       The evidence in the matter of Cassif on this cause relies upon two newspaper publications. The first is an article on the internet site of Makor Rishon from Feb. 7, 2019, according to which Cassif stated in an interview some two years earlier on the subject of the evacuation of Israeli settlements in Judea and Samaria that he viewed this as a first step towards a Palestinian state, and that the State of Israel cannot be and must not be a Jewish state. Cassif expressly refutes these words attributed to him (para. 10 of the affidavit submitted by Cassif to the Elections Committee). As already noted, the probative weight that can be ascribed to such articles, and all the more so to “second hand” articles is low.

67.       The second and more significant piece of evidence presented by those requesting Cassif’s disqualification is an interview with Cassif in the Ha’aretz newspaper in February 2019. According to the petitioners for disqualification, certain statements by Cassif in that interview can be understood as a call for the negation of some of the core characteristics of the State of Israel as a Jewish state. Thus, for example, in response to the interviewer’s question about the character of the Israeli public space, Cassif said: “The public space has to change, to belong to all the residents of the state. I disagree with the concept of a Jewish public space”, adding that this would be expressed “for example, by changing the symbols, changing the anthem […]”. Cassif was also asked in that interview whether he supported the revocation of the Law of Return and answered “Yes. Absolutely”. As for the question of the Palestinian right of return to Israel, he replied: “There is no comparison. There is no symmetry here at all […]”. These worrying statements, which Cassif did not deny, certainly bear significant weight in examining the cause for disqualification in his regard under sec. 7A(a)(1) of the Basic Law. However, we are concerned with a newspaper interview and a single statement made in it, and I therefore agree with the Attorney General’s view that this piece of evidence alone is not sufficient to meet the strict criteria established by the case law for disqualifying a candidate from standing for election to the Knesset. Indeed, as presented in detail above, in order to ground a cause for disqualification, it is necessary to present statements that unambiguously, clearly and persuasively testify to the negation of the core characteristics of the State of Israel as a Jewish state. One must also show that this is the dominant purpose motivating the candidate’s activity and that he vigorously and consistently acts for its realization as part of a concrete political program. To this we should add that in his statements before the Elections Committee and before this Court, Cassif noted that he sees himself as obligated to the platform of the Hadash party, whose representatives have served in the Knesset for many years, and stated in the hearing before the Elections Committee: “The party of which I am a member and which I represent, […] made it its motto and has always said that we view the State of Israel as a state in which the Jewish people in the land is entitled to define itself. I do not deny that, I have never denied that, and I have no intention of denying that” (Transcript 10/21, p. 37).

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

68.       Has it been shown, as the petitioners for disqualification claim, that Cassif supports armed struggle by the Hamas terror organization against the State of Israel? A large part of the disqualification request in this regard rests upon statements attributed to Cassif that imply a comparison between the State of Israel and senior members of the government of Nazi Germany and Nazi war criminals. Thus, for example, in the article on the Makor Rishon website mentioned above, it was claimed that “Cassif called Lieberman ‘a descendant of Adolph’, and explained: ‘A conceptual descendent, not an actual one”, and called former Justice Minister Ayelet Shaked “neo-Nazi scum”. In another article on the website of Channel 20 from March 2016, a Facebook post by Cassif was quoted in which he wrote about the Israeli government, among other things, that “this is a fascist government par excellence, with real Nazi motives […] and at its head, above all others: an incompetent scoundrel who has destroyed every good thing there ever was here […] an outstanding student of Göring’s doctrine”. In another article published on the Channel 20 website in April 2018, there was a recording of Cassif from a class that he gave in which he is heard saying that “in the Israeli discourse created by the current government, it is legitimate to kill Arabs. This is how one slides into the abyss of what happened in Germany 80 years ago”.

69.       Those statements, which Cassif did not deny, are very harsh, and the evident comparison between the State of Israel and government ministers to Nazi Germany is outrageous and were better never said, and having been said, I reject them in the most severe terms. The weak explanations provided by Cassif, according to which the statements were only made as metaphors in order to arouse critical public debate and to warn against dangerous deterioration, do not blunt their severity. Cassif also took the trouble to explain that in his publicist writings he emphasized that “any comparison between the Nazi annihilation and Israeli policy in the territories would make a mockery of the Holocaust”, of which it may be said that he did not practice as he preached. However, we must admit that as outrageous and enraging as these statements may be, they do not ground a cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel, and they cannot, in and of themselves, lead to the disqualification of his candidacy in the elections (and compare: the Kach case, p. 3). In any case, Cassif made it clear that he does not intend to repeat such things as an elected representative (para. 13 of the affidavit submitted by Cassif to the Elections Committee), and it is to be hoped that he will act accordingly.

70.       The additional evidence presented in support of Cassif’s disqualification on the cause of support for the armed struggle of Hamas against Israel also does ground a cause for his disqualification. In this regard, the plaintiffs directed our attention, inter alia, to a post by Cassif that was mentioned earlier, which, they argue, shows that he supports a violent struggle against the fascism and racism that have, in his opinion, spread in Israeli society. They also referred to an article on the website of Channel 20, also mentioned above, that includes a recording of Cassif from 2018 in which he is heard saying that “Hamas is a political party”. Lastly, the plaintiffs refer to Cassif’s statements in the interview in Ha’aretz in which he stated:

Cassif: “Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable […] Wherever there was a struggle for liberation from oppression there are national heroes who, in 90% of the cases, did things that were, in part, terrible. Nelson Mandela, who is now regarded as a hero, a Nobel Peace Prize laureate, was a terrorist according to the accepted definition […]”.

Interviewer: “In other words, the Hamas commanders today, who initiate actions against soldiers will be heroes of the Palestinian state that will be established?”

Cassif: “Certainly”.

Cassif asked to explain what he said, and told the Elections Committee and the Court that he opposes the use of violence against any person. He did not deny his opposition to the Israeli policy in Judea and Samaria and said that in his vision for the future he sees an end of the military regime there and that his activity is intended, among other things, to change the situation of the Palestinian people in Gaza and in general. However, as already noted, expressing this opinion alone does not give rise to a cause for disqualification (see para. 56), and Cassif declared unambiguously that he does not support opposition by means of armed struggle, but rather political, non-violent opposition (compare: the Tibi case, p. 50; the second Zoabi case, para. 71), and in his words: “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence, this was also expressly stated in the interviews with me and in every other framework […] I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all” (Transcript 10/21, p. 34). Cassif also expressed a similar position in that interview in Ha’aretz that was presented by the plaintiffs, a part of which was quoted above, in stating: “We have always opposed harming innocent civilians. Always. In all of our demonstrations, one of our leading slogans was: In Gaza and Sderot, children want to live. With all of my criticism of the settlers, going into a house to slaughter children, as in the case of the Fogel family, is something that is intolerable. You have to be a human being and reject this”.

As for Cassif’s statement in regard to harming soldiers, we are concerned with a severe, enraging statement that could be interpreted as legitimizing the harming of IDF soldiers by the Hamas terror organization. While Cassif tried to create a distinction in this regard between his theoretical, academic views and his political views, in my view, it is an artificial and unpersuasive distinction that is hard to accept. Nevertheless, at the end of the day, the evidentiary foundation presented by the plaintiffs relies upon those aforementioned publications, and I agree with the position of the Attorney General that this evidentiary foundation is meager and insufficient to ground the cause for disqualification under sec. 7A(a)(3) of the Basic Law in accordance with the criteria set out in the case law, which I discussed above.

 

EA 1867/19 Ben Ari v. Hadash-Ta’al List

71.       The request to disqualify the Hadash-Ta’al list from standing for election to the 21st Knesset was filed by Ben Ari and Ben Gvir upon two causes: negation of the existence of the State of Israel as a Jewish state under sec. 7A(a)(1) of the Basic Law, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The Elections Committee decided by a majority of 15 for and 12 against to dismiss the request, and thus the present appeal.

 

Arguments of the Parties

72.       The appellants who seek the disqualification, and a few members of the Elections Committee who joined them as appellants, argued that the statements and actions of members of the list are intended to negate the character of the State of Israel as a Jewish state, and that its members support the Hezbollah and Hamas terror organizations while legitimizing harming Israeli citizens residing in the Judea and Samaria area and IDF soldiers.

73.       For its part, the Hadash-Ta’al list relied upon the decision of the Elections Committee and argued that the requesters of disqualification did not present an appropriate evidentiary foundation that could ground the claimed causes for disqualification. It was explained that the request was partly based upon old evidence that had been examined by the Elections Committee in previous elections, and that many of the statements attributed to members of the list were distorted and presented in a tendentious manner. It was further noted that most of the evidence was based upon reports taken from internet sites and newspaper clippings of low probative value, and that part are not even relevant to grounding the causes for disqualification.

74.       The Attorney General was of the opinion that the entirety of the evidence presented in regard to that request does not justify its acceptance inasmuch as it did not amount to the “critical evidentiary mass” required for disqualifying a list from participating in the elections for the Knesset. This is particularly so given that the evidentiary material presented in the matter of Hadash-Ta’al is significantly more limited than that presented in previous proceedings in which the said causes for disqualification were addressed. The Attorney General also added that the request was based largely on newspaper reports and parts of speeches that are of low probative value, and in particular, given the fact that we are not concerned with up-to-date evidence, and that part relates to the period preceding the elections for the 20th Knesset.

75.       The appellants based their argument in regard to the cause of disqualification concerning the negation of the existence of the State of Israel as a Jewish state on a few statements by members of the list that are insufficient– both quantitatively and qualitatively – for meeting the necessary evidentiary threshold to ground the argument that Hadash-Ta’al negates the core characteristics of the State of Israel as a Jewish state. The primary piece of evidence presented by the appellants in this regard was an interview with Knesset member Tibi in the Ha’aretz newspaper in March 2017, in which he was asked to provide a hypothetical description of the situation in which the vision of two states was abandoned and instead, a single state was established in which the Arab minority became the majority. In that interview, Tibi is quoted as saying that such a state would be substantially different from the State of Israel today, and that the Declaration of Independence would be replaced by a civil declaration in which equality would be a supreme value, the Law of Return would be revoked, and the state’s symbols would be changed. However, Tibi expressly stated in that interview that his vision is a vision of two states – a fact that the appellants refrained from mentioning in their arguments. The appellants further referred to a short segment of a television interview with Tibi in 2011 in which he said that he cannot recognize the State of Israel as a Jewish state. These two pieces of evidence, which are not from the recent past, are not sufficient to show clearly, persuasively and unambiguously that Tibi acts for the negation of the existence of the State of Israel as a Jewish state. It should be borne in mind that we are concerned with a member of Knesset who has served for some two decades, and that no argument was presented in regard to his parliamentary activity that would support the claimed cause for disqualification (compare the Ben Shalom case, p. 251). The additional evidence presented consists of quotes regarding which there is doubt as to whether they could ground the cause of negation of the existence of the State of Israel as a Jewish state, and in any case, they are attributed to Raja Zaatra, who is not a member of the Hadash-Ta’al list for the 21st Knesset and who claimed that the quotes were untrue. The appellants further referred to statements by Cassif, who is a member of the Hadash-Ta’al list, but as noted above, we did not find them sufficient to lead to disqualifying Cassif himself, and thus they cannot lead to the disqualification of the entire list (see and compare: the Tibi case, p. 44; the Balad case, para. 20).

76.       The evidence adduced by the appellants in all that regards the cause for disqualification concerning support for armed struggle by a hostile state or a terrorist organization against the State of Israel comprises, inter alia: a public address by Tibi in 2011 in Arabic in which, it is argued, he expressed praise for martyrs, and a report from 2007 on his participation in a march marking five years since Operation Defensive Shield in Jenin, among a crowd in which people dressed up as suicide bombers were present. In addition, the appellants referred to statements by a member of the Hadash party, Aida Touma Suleiman (hereinafter: Suleiman) in which she called the conduct of IDF forces in violent events on the Gaza border “premeditated murder”, refused to call the Hamas a terrorist organization, and argued that “an intifada by the people against the occupation is legitimate”. The appellants further referred to Suleiman’s participation in a demonstration in support of those who refuse to serve in the IDF, and to her refusal to hold a debate on women soldiers in the IDF when she served as chair of the Knesset committee for the advancement of the status of women. In addition, statements by a member of the Ta’al party, Osama Saadi, were presented expressing support for a popular struggle and who, it is claimed, refused to denounce harming Israeli citizens who reside in Judea and Samaria. The appellants also referred to statements by the chair of the Hadash faction, Ayman Odeh (hereinafter: Odeh), who refused to denounce harming IDF soldiers and thanked a Palestinian television station that praised the parliamentary activity of the Joint List in the 20th Knesset. The appellants further referred to a report that Odeh had clashed with police in a conference of the Popular Front and Democratic Front organizations, reports on meetings of members of the list with security prisoners in prison, reports of discussions held with Palestinian leaders, and to the Hadash party’s condemnation of the decision of the Persian Gulf states and the Arab League to declare the Hezbollah a terrorist organization.

77.       I examined the said assembled evidence and arrived at the conclusion that it is insufficient under the strict criteria outlined in the case law for establishing a cause for disqualification under sec. 7A(a)(3) of the Basic Law. As the Attorney General noted, part of the evidence presented in this matter does not show – even prima facie – direct or indirect support for terrorist activity. To that one should add that some of the evidence adduced is old and even precedes the elections for the 20th Knesset, and the Elections Committee to which that evidence was presented in the past did not find that it grounds the cause for disqualification. Indeed, some of the material attributed to the representatives of Hadash-Ta’al as detailed above can be interpreted as supporting an armed struggle against the State of Israel by a terrorist organization, but given the fact that in those very same publications to which the appellants refer there are also statements by members of the list according to which they do not support violence as a political approach, the resulting doubt weighs against that interpretation. Moreover, those requesting disqualification did not present the official platform of the list, which is a primary source depicting its purposes (the second Neiman case, p. 186; the Moledet case, p. 362), and for this reason, as well, it is difficult to conclude that the list supports armed struggle against the State of Israel by a terrorist organization and that this is the central, dominant purpose of Hadash-Ta’al for the realization of which it acts in a real and consistent manner.

 

Conclusion

78.       For the reasons detailed above, I have, as stated, arrived at the conclusion that the appeal in EA 1866/19 should be granted in part, and to hold that Ben Ari is banned from contending in the elections for the 21st Knesset, which does not apply to Ben Gvir; to overturn the Elections Committee’s decision in EA 1876/19 and hold that the Ra’am-Balad list is not barred from participating in those elections; to overturn the Elections Committee’s decision in EA 1806/19 and hold that Cassif may participate in the elections for the 21st Knesset; and to deny the appeal in EA 1867/19 and hold that the Hadash-Ta’al list is not barred from contending in the elections for the 21st Knesset.

 

Justice I. Amit:

            I concur in the decision of President E. Hayut, and I will add a few words of my own.

1.         Every election season, as a kind of ritual, the Supreme Court is called upon to address the disqualification of lists or candidates on the basis of the Knesset Elections Law [Consolidated Version], 5729-1969. Knesset elections are a purely political matter, and the Elections Committee reflects the relative political power in the Knesset like a mini-Knesset. As opposed to this, sec. 7A of Basic Law: The Knesset was originally enacted to reflect timeless constitutional criteria of causes for qualification that are not judged on the basis of prevailing sentiment. In view of the fundamental right to vote and to be elected, the Supreme Court established strict criteria for the disqualification of a list or a candidate, which were reviewed in para. 16 of the President’s opinion: dominant purpose; express declarations or unambiguous conclusions; non-sporadic conduct; and persuasive evidence.

            In putting those principles into practice, we examine each disqualification independently on its own merits, in accordance with the relevant cause for disqualification and the evidence referring to it, while not seeking any kind of political “symmetry” or “balance”. As I had the opportunity to say: “the voting in the Elections Committee is political, and thus the great caution that this Court must exercise as a party to the decision so as not to be infected by the political game” (EDA 1095/15 Central Election Committee for the 20th Knesset v. Hanin Zoabi [6], para. 1 of my opinion) (hereinafter: the second Zoabi case)).

            And now to the matter on the merits.

2.         Sec. 7A(a)(2) of Basic Law: The Knesset – “Incitement to Racism”:

            The legislature stated its opinion loudly and clearly. Incitement to racism is politically out of bounds. Incitement to racism is contrary to universalist democratic values. Incitement to racism is incompatible with the values of the State of Israel as a Jewish state. Incitement to racism – not in this house and not in the Knesset. For this reason, the Kach movement was denounced and expelled from the community and placed beyond the bounds of law. Racially inciting discourse is harmful by its very nature, and as such, I am of the opinion that it should not be subject to the probability test.

3.         In the “last round”, Baruch Marzel’s candidacy was confirmed, but in his dissent, Justice Rubinstein expressed his opinion that we were concerned with “the sheerest of sheer costumes” (the second Zoabi case, para. 118 of his opinion). As the President so aptly demonstrated, the candidate Ben Ari did not even bother to put on a disguise. According to him, the logic is as follows: Whoever is not a Zionist is an enemy, the overwhelming majority of Israeli Arabs are not Zionists, therefore the conclusion is that the overwhelming majority of Israeli Arabs are to be viewed as enemies. The Attorney General was rightly of the opinion that Ben Ari should be disqualified, and we agree.

4.         Sec. 7A(a)(1) of Basic Law: The Knesset – “Negation of the existence of the State of Israel as a Jewish and Democratic State”.

            In the second Zoabi case, I noted that “the Jewish public must be sensitive to the dilemma of the Arab minority, but similarly, elected Arab representatives must conduct themselves with wisdom and sensitivity in regard to the state of which they are citizens and understand the sensitivities of the majority”. In the fascinating hearing before us, it could be inferred from the statements of those requesting the disqualification of Ra’am-Balad that a party that is not Zionist should be deemed as one that entirely rejects the existence of the State of Israel as a Jewish state and must, therefore, be disqualified. In my opinion, this argument insensitively pigeonholes a considerable part of the Arab population that, while not Zionist, identifies with the State of Israel and sees itself as an integral part of it. It is hard to accept that the State of Israel would make an outcast of anyone who is not a Zionist, or anyone who ideologically rejects the Zionist idea. Disqualifying a list or a candidate for “incitement to racism” reinforces both characteristics of the State of Israel as “Jewish and democratic”. Disqualifying a list or a candidate for discourse and speech that is not Zionist in accordance with the approach of those seeking disqualification in the present case constitutes somewhat of a lessening of the democratic element. Therefore, and for the purposes of the cause for disqualification under sec. 7A(a)(1) of Basic Law: The Knesset, the two components of “Jewish and democratic” must be balanced wisely and sensitively so that accusers will not say that our state is “democratic” for the Jewish majority and “Jewish” for the Arab minority.

            And note: we sing [in the National Anthem – trans.] “the soul of a Jew still yearns” with misty eyes, and the Law of Return, 5710-1950 is, indeed, the “Foundation Stone” of the State of Israel and a Jewish state. The Law of Return is the alpha and omega for the very existence of the State of Israel, and it is what ensures the existence of a Jewish majority in the State of Israel. But not every passing thought, notion, or expression that casts doubt about the Law of Return will inherently lead to disqualification given the strict tests for disqualification noted above (such as dominance), and perhaps the probability test as well. However, a bill to rescind the Law of Return, or a party platform that openly calls for the rescission of the Law of Return might move a list across the boundary of disqualification, and it would seem that Balad, almost as a habit, not infrequently walks on the boundary. It would not be superfluous to note that in the Tibi case (Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 40), President Barak was ready to accept the statement of MK Bishara that he did not demand the revocation of the Law of Return. From this we can infer the result had it been otherwise claimed. This brings us to the central piece of evidence presented to us in regard to Balad, which is the Basic Law: A State of all its Citizens Bill that it presented to the Knesset, and which in effect, expresses a desire to undermine the Jewish character of the state.

5.         A number of reasons led me to the conclusion that the Balad list should not be disqualified for that bill, even without addressing the question of the probability test.

            First, most of the Balad Knesset members in the prior Knesset are not on the current list, which changes its character. Second, that bill should be seen as a sporadic act of protest following the enactment of Basic Law: Israel – The Nation State of the Jewish People. The bill is not included in Balad’s platform, it is not claimed that it was part of its platform in the past, and no systematic, consistent activity in that direction was proven. The bill should, therefore, be viewed as a one-time act that does not, in and of itself, give rise to a cause for disqualification.

6.         These are the main reasons why I am of the opinion that that the Balad party walked on the margin but did not cross it, even though the bill brought it but a step away. For my part, I will leave the grounds for the Attorney General’s opinion – that Balad did not stand alone but rather as part of a joint list of Ra’am-Balad – for further consideration. One could, on the other hand, argue that the very fact of that partnership with another party placed Balad under a higher duty of care lest crossing the boundaries might harm the other party. The other side of the coin is that the unification of parties does not grant immunity from disqualification, such that parties that may join with Balad in the future will have to take that into account. I will, therefore, leave the matter for further consideration.

 

Justice U. Vogelman:

1.         I concur in the conclusions and the comprehensive opinion of my colleague the President, and with the main points of her reasoning.

2.         The principles applicable to appeal and approval proceedings with which we are concerned are grounded in a broad range of case law, which is appropriately detailed in the opinion of my colleague the President.

3.         My colleague the President addresses the difference between an elections appeal and an elections approval, and on the various approaches in our case law in regard to the scope of the Court’s review in the different proceedings. My colleague Justice I. Amit, for his part, addresses the caution that the Court must adopt, in his view, in proceedings such as these due to the fact that the vote in the Elections Committee if political.

4.         I see no need to set in stone the proper approach among those enumerated by my colleagues (inasmuch as each of them leads to the same result in the instant case). However, I would like to emphasize that, in my view, given the nature of the rights and balances involved, the “political” considerations cannot be given weight in terms of the constitutionality of the decisions, and that the political nature of the proceeding in the Central Elections Committee is not meant to influence the form of judicial examination and its scope.

5.         On the matter of disqualification for incitement to racism.

            The first matter I wish to address in this regard concerns the application of probability tests for the realization of the dangers that the causes for disqualification are intended to prevent (a question that has not yet been resolved in our case law). In the context of the said cause, I would like to point out that, in my view, there is no place for a “probability test” inasmuch as racist expression is not worthy of protection. In the words of Justice D. Beinisch: “Racism is the kind of affliction whose isolation and removal from the political and social arena is an essential condition for preventing its spread” (EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 88) (hereinafter: the Tibi case)).

            The words of Justice Procaccia in the same matter are apt:

The phenomenon of racism in the chronicles of history and the annals of the Jewish people is special and unique. Nothing compares to its rejection and the defense against it even among the many protections of the fundamental human rights that the constitutions of western states diligently labor to ground. The moral, ethical taint of incitement to racism, against the background of its deep opposition to the universal concept of human rights, and in view of the atrocities of the Holocaust of European Jewry that was annihilated due to racial theory, does not tolerate its inclusion on the podium of ideas and opinions of political discourse. That is so, even if there is no foreseeable danger whatsoever of the realization of the inciter’s dogma, and even if his words are like “a voice crying out in the wilderness” without echo and without being heard.

Racism is condemned, and it must be eliminated by virtue of the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, of which Israel is a signatory. The parties to it pledged not to sponsor racial discrimination and to adopt immediate measures in order to uproot every phenomenon of racism (arts. 2, 4, and 5 of the Convention).

The condemnation of racism takes on a special dimension in Jewish tradition in view of the blood-soaked history of a nation that was a victim of the manifestations of this phenomenon over generations. Racism stands in contradiction to the fundamental values of the State of Israel as expressed in the Declaration of Independence, according to which full social and political equality must be ensured for all citizens regardless of religion, race, and sex. The depth and force of the condemnation of racism as a social phenomenon do not accord with granting of an opportunity to a candidate to run for office on the basis of racist ideas among the range of opinions and perspectives expressed in political discourse. Standing for election on the basis of racist ideas flies in the face of the educational, moral purpose of inculcating the principles of equality and tolerance in Israeli society. These ideas cross the bounds of the red line that guarantees tolerance even for expressing deviant ideas and views. Casting them out beyond the pale is necessary so that expressing them will not be interpreted, even by inference, as granting approval and legitimacy to those who hold them to participate in the life of the state (and compare: R. Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, p. 173).

                        […]

In this spirit, the condemnation of incitement to racism and its removal from the framework of political contest is a value unto itself, unconditional and unrestricted even where there is no attendant probability whatsoever of the realization of its potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entrance of inciters to racism into the political arena (compare the words of Justice E. Goldberg in the meeting of the Knesset Elections Committee in the matter of the disqualification of the Kach party, Oct. 5, 1988, p. 47ff.). Incitement to racism is condemned as a value of universal and national heritage, and it stands above and beyond the probability test of its foreseeable danger on the basis of some criterion or another. The contradiction between racism and the fundamental values of the stare is so deep that anyone who embraces it in his political thought should be disqualified from the outset (the Tibi case, pp. 89-90).

            I agree with every jot and tittle of these true words.

6.         Moving from the general to the specific – my colleague well described the factual grounds upon which we decided that the cause of incitement to racism is met in the case of Ben Ari, and it would be superfluous to reiterate the well-grounded presentation of the evidentiary foundations. Ben Ari’s incitement extends to a broad range of subjects, among them a call for excluding Arab citizens from residing within the limits of an Israeli city, recall dark periods in the history of nations. The addition of the cause for disqualification with which we are concerned to the Basic Law by the constituent authority of the State of Israel was intended for a war against such phenomena, and it is our role to interpret the Constitution and maintain its boundaries.

7.         The matter of Ben Gvir is different. I concur with my colleague’s conclusion – which ascribed weight to his declarations concerning changing his manner – that the foundation amassed in his regard does not amount to a “critical mass” that grounds a cause for disqualification.

8.         As for the Ra’am-Balad list – as my colleague notes, the entirety of the evidence adduced is not qualitatively different from what was presented to this Court in previous proceedings that concerned the question of the disqualification of Balad and members of the list in which it was held that it did not constitute a sufficient foundation for disqualification. I see no need to address the Basic Law bill that Balad presented, to which my colleagues referred, given that the Balad Knesset members who served in the last Knesset are not included in the current list, and given the clarification by the list’s attorney that the bill is not part of Balad’s platform.

9.         In the matters of Ofer Cassif and the Hadash-Ta’al list, as well, I concur with the conclusion that the evidentiary foundation is insufficient to ground the claimed causes for disqualification.

 

Justice M. Mazuz:

            I concur in the main points of the reasons and conclusions of President E. Hayut, and I wish to add two comments. Because they are not necessary for the decision, I will state then in brief:

1.         The cause of “negation of the existence of the State of Israel as a Jewish state”:

            As we know, the cause of “negation of the existence of the State of Israel as a Jewish and democratic state” under sec. 7A(a)(1) of Basic Law: The Knesset formerly comprised two separate causes: “Negation of the existence of the State of Israel as the state of the Jewish people”, and “negation of the democratic character of the state” (secs. 7A(1)-(2)). The two causes were unified in the framework of a 2002 amendment to Basic Law: The Knesset that added the authority to disqualify a candidate (not just a list) and the cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel. As explained in the Explanatory Notes, this unification derived from the desire for uniformity between the wording of sec. 7A and sec. 5 of the Parties Law, 5752-1992 (“and this because the two sections are interrelated”), and was not intended to introduce a change in the content of these causes by virtue of their unification.

            In practice, the unification of the causes, which involved a certain change in the wording of the cause, was the basis for an interpretation of this cause that was both different in content and broader in scope. While under the prior wording, the cause of “negating the existence of the State of Israel as the state of the Jewish people” addressed the negation of the view that the State of Israel is the state of the Jewish people in the sense of the place in which it realizes its right to self-determination, under the unified wording, the term “Jewish state” was interpreted as referring to the internal content of the state’s identity and the elements of the Jewish identity of the state from within (“the primary symbols” of the state and the “nuclear characteristics” of its Jewish identity).

            In my opinion, the proper interpretation of the cause for disqualification of “negating the existence of the State of Israel”, like the separate cause under the prior wording, refers to the identity of the State of Israel as the state of the Jewish people in the national sense, as the place in which it realizes its right to self-determination, and not as referring to internal features of the state that characterize it as a Jewish state. This position has consequences, inter alia, in regard to how to view the Basic Law: A State of all its Citizens Bill introduced at the time by Knesset members of Balad, however, in view of the President’s conclusions in this regard (para. 58), I see no need to expand upon my approach to the bill and I will only note that I agree in principle with the comments of Justice I. Amit in paras. 4-5 of his opinion.

 

2.         A Probability Test and Incitement to Racism:

            This issue has been addressed on several occasions in previous case law, beginning with the first Neiman case, and various opinions – mostly rejecting it in general, or at least in regard to the cause of incitement to racism – but it has been left for further consideration and remains undecided.

            I am of the opinion that there is no place for a probability test in applying the causes for disqualification under sec. 7A of Basic Law: The Knesset. The probability test has no grounding in the language of the law, and it raises many – theoretical and practical – difficulties in its application. I will not presume to exhaust all the reasons for this position, but will suffice with a few words: first, in terms of the interpretation of the law. As we know, the interpretation of a statute begins with its language and is limited by it. There are no grounds for requiring a probability test in the language of sec. 7A. Section 7A refers to objectives and actions, including statements, by a list or candidate. We are concerned with causes of “conduct” not “results”. Second, the Court, called upon to approve or review a decision by the Central Elections Committee to disqualify a candidate or list, lacks the tools for applying a probability test for the purpose of approving or rejecting the probability evaluation of the Elections Committee. A probability estimate in the public-political context is inherently speculative, and the Court would do well to refrain from it. Third, and this is the main point, sec. 7A treats of the lack of legitimacy of a list or candidate who meets the disqualification criteria to participate in the “democratic game”. The theoretical basis for disqualifying lists or candidates, as stated, does not suffice by preventing a real, concrete threat, but primarily concerns not granting legitimacy to lists of candidates whose objectives and actions are beyond the legitimate democratic boundaries for participating in the democratic elections.

            It would appear that the cause of “incitement to racism” under sec. 7A(a)(2) well demonstrates this. Incitement to racism and racist acts are unacceptable per se, as they are contrary to the most basic values of a democratic society, which is founded upon the idea of the equality of human beings. We are concerned with universal values accepted in the law of nations. Under the International Convention on the Elimination of All Forms of Racial Discrimination, known as the CERD Convention – signed by the State of Israel on March 7, 1966, ratified on Jan. 3, 1979, and entering into effect on Feb. 2, 1979 – the State of Israel assumed, like the other signatory nations, inter alia, the obligation to prohibit racial and other discrimination and to adopt all means, including legislation, to bring about its end (art. 2(1)(d) of the Convention). In 1985, together with the amendment of Basic Law: The Knesset and the addition of sec. 7A, the Penal Code was also amended with the addition of Article 1A: Incitement to Racism, which established various offences of incitement to racism (both amendments were included in the same pamphlet of bills – H.H. 5745 193). The offences of incitement to racism are conduct crimes, not result crimes, and do not comprise an element of probability (“it does not matter whether the publication did cause racism” – sec. 144B(b)).

            Incitement to racism is, therefore, prohibited and unacceptable without regard for the probability of the realization of its objectives. It is an illegitimate form of discourse in a democratic society. Incitement to racism does not represent any protected value that requires a balancing of interests. The value of freedom of expression, which is the life breath of democracy, was intended to protect non-violent public debate and to permit a conceptual contest among legitimate values in a democratic society. Racist discourse “pollutes” the democratic discourse and undermines the purpose of conceptual inquiry among the members of society and the free establishment of views on the basis of democratic values. Therefore, the reason for preventing the participation of a list or candidate that incites racism in the elections is not restricted to a fear of the realization of the objectives of the incitement, but is primarily concerned with the public value of not granting legitimacy to racist speech as part of the democratic discourse. In this sense, the cause for disqualification for incitement to racism is a special case of the cause relating to the negation of the democratic character of the state.

            Lastly, I would emphasize that I do not believe that the probability test is necessary for mitigating the causes for disqualification or for granting flexible tools for their application. To that end, the case law established a strict, narrow interpretive approach to the causes of disqualification. Strict criteria were also established that are implemented in judicial review of this matter, among them the demand that the objectives attributed to a list or candidate constitute a central, dominant objective and not a secondary, marginal issue, and the requirement of active, consistent, and systematic action for the realization of those objectives. It was further held that the evidence for disqualification must be persuasive, clear and unambiguous. All of these provide the Court with effective tools to ensure that the disqualification authority, which is an exceptional and intrusive authority, be exercised only in extreme, clear cases, without the need for the problematic means of a probability test.

 

Justice N. Sohlberg:

1.         If we were to interpret and implement the causes for disqualification in sec. 7A of Basic Law: The Knesset as written, as they would be understood by the average person, then not only would Dr. Michael Cassif be barred from candidacy for the Knesset elections. A plain reading of the section would, in all probability, lead us to conclude that additional lists and candidates whose matters have been examined by this Court over the years would also be granted this dubious honor.

2.         However, that is not the case. From the very outset, this Court adopted a strict approach to the legal interpretation of sec. 7 and to its application in practice. This approach reflects a value-based decision that democracy grants special – almost supreme – importance to the constitutional right to vote and be elected. Disqualifying a list or a candidate from standing for election to the Knesset must be the very last resort; one that is reserved for manifestly extreme case in which there is no room for doubt: “The essence of such a matter, the limitation of a basic constitutional right, inherently carries a standard of interpretation that must be strict and narrow, and section 7A should be reserved for only the most extreme cases. This interpretive approach does not conflict with the statute but is rather a result of a proper understanding of the purpose of the statute, which does not seek to limit freedoms, but to protect them against actual danger” (the second Neiman case, p. 187; emphasis here and below added – N.S.). This approach has become firmly rooted in the case law of this Court: “Preventing the participation of a party in the elections is a most extreme step. The right to vote and to be elected is a right of the highest constitutional level” (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], p. 802, per Deputy President A. Barak); “Preventing a party from participating in the elections is an extreme and exceptional step that in many ways directly contradicts the fundamental principles upon which democracy rests” (the Balad case, para. 3 of the opinion of President Beinisch); “Preventing participation in Knesset elections is an extreme step that is reserved for the most exceptional cases for which the normal democratic tools are insufficient” (the second Zoabi case, para. 75 of the opinion of President M. Naor).

            I will briefly summarize the guiding criteria as expressed in the case law: Barring participation in Knesset elections will only be done as when all else has failed.

3.         Recently, in the Basic Law: The Knesset (Amendment no. 47) (Prevention of Participation in Elections due to a Candidate’s Statements) Bill, the constituent authority expressed the view that it accepts the narrow path taken by the Court in applying sec. 7A. The bill expressly established that a person’s actions also include his statements. The Explanatory Notes clarify as follows: “The proposed amendment expressly anchors the approach accepted in the case law in this matter, according to which “actions” under sec. 7A of the Basic Law also include statements. Thus, the amendment is not intended to alter the Court’s case law according to which the application of sec. 7A of the Basic law will performed narrowly and strictly in order to protect the state’s most vital interests” (H.H. 675, p. 52). However, there was also some criticism of the direction of the case law, on the need to take care not to adopt an overly restrictive interpretation of the causes for disqualification in sec. 7A, while unduly expanding the boundaries (see, e.g., the second Zoabi case, para. 8 of the opinion of Deputy President E. Rubinstein).

4.         The criteria developed in the case law for the application of sec. 7A, which reflect the narrow interpretive approach, were set out in para. 16 of the opinion of my colleague the President. Primarily, in brief, one must show that the cause for disqualification can be found in the objectives or the actions of the list or candidate; those objectives or actions must form part of the dominant characteristics of the actions of the party or candidate; they can be learned from express declarations or from unambiguously probable conclusions; theoretical objectives are insufficient, but rather one must show systematic “activity in the field” that must constitute severe, extreme expression in terms of its intensity; and lastly, the evidence based upon the above must be “persuasive, clear, and unambiguous”.

5.         On the basis of those criteria, my colleague the President found, and my colleagues concur, that the evidentiary foundation in the matter before us paints an unambiguous and persuasive picture according to which Ben Ari “systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public” (para. 42 of the President’s opinion). Therefore, she held that he must be disqualified.

6.         I considered and reconsidered the matter. I carefully read the various statements, watched and listened. I considered the various clarifications and explanations over and over again, and the dilemma was difficult and weighed heavily. I did not easily decide to disagree with my colleague’s conclusion. The source of my dilemma was the substantial gap between the image of Ben Ari as reflected in the virtual arena – in the social networks – and that shown us in the Elections Committee’s hearings and in the Court. Thus, in his affidavit in the instant proceeding, Ben Ari rejected the claims about his racist views, and declared, inter alia, as follows:

I do not think that people are of different value due to their ethnic, national or religious origin. All human beings were created in the Divine image, and all human beings were granted free choice. Your own deeds will cause you to be near, and your own deeds will cause you to be far[1] […] In my view, the Arab National Movement, whose purpose is to destroy Jewish sovereignty through the use of violence and terror is the enemy of the State of Israel, of the Jewish people and of Zionism. I would like to emphasize that what makes it an enemy of the state, the people and of Zionism is not the ethno-national origin of its members and supporters, and not their religious belief.  What turns the members and supporters of the Arab National Movement into enemies are the political objectives that this movement established and the ways in which it acts for the realization of those objectives since the beginning of the 20th century and to this day […] Anyone who accepts that the State of Israel is the state of the Jewish people and agrees that Israel is a Jewish and democratic state is a desirable citizen who is worthy of all the civil, social and political rights without regard for religions, race, sex, ethnic origin or skin color. In addition, I am of the opinion that basic human rights are granted to every person as such, and that the state must act justly and fairly toward every person without regard for religion, race, sex, ethnic origin, or skin color (paras. 9, 16-17 of the affidavit).

7.         Further on in the affidavit, Ben Ari addresses all the statements quoted in his regard (as opposed to in the hearing before the Elections Committee, in which he addressed only a part of them) and explained that “all of my arrows are directed against those who are not loyal to the State of Israel and hostile to the Zionist enterprise. Even if, at times, my words may sound or be apprehended as general, that absolutely does not reflect an intention to generalize, and in no way reflects my true, consistent opinion” (para. 22 of the affidavit). Like the cases adjudicated by this Court in the past, real doubt arises in regard to the sincerity of Ben Ari’s declarations.

8.         Three examples from the past: (a) Baruch Marzel declared, at the time, that he had recanted his prior views, that he sought to act only in accordance with the law, accepts the principles of democracy, and had withdrawn from the path of generalized statements of the Kach movement. A long line of evidence led the Court to a conclusion in regard to “a real doubt as to the sincerity of Mr. Marzel’s declarations, according to which he had disavowed his approach and his former racist, undemocratic ideology” (the Tibi case, para. 81 of the opinion of President A. Barak). Later, prior to another election, President M. Naor stated: “I, too, do not believe that Marzel has changed his views and thoughts” (the second Zoabi case, para. 33). (b) Hanin Zoabi declared, at the time, her opposition to violence, and nevertheless “it was difficult for me to be persuaded that MK Zoabi does not support armed struggle” (ibid., para. 7 of the opinion of my colleague Justice I. Amit). (c) MK Azmi Bishara argued, at the time, that he opposed violence and armed struggle, and he, too, did not earn much trust: “There is doubt in our hearts. But the doubt must act – in a democratic state that believes in freedom and liberty – in favor of the freedom to vote and to be elected” (the Tibi case, para. 46 of the opinion of President A. Barak).

            As may be recalled, Hanin Zoabi and Azmi Bishara served honorably as members of the Israeli Knesset. Marzel’s candidacy was also approved, twice, although he was not elected. And what of the case of Ben Ari? In the end, his statements “in real time” speak for themselves, and clearly to his detriment. I will not belabor the point and repeat what has already been presented at length in the opinion of my colleague the President. I will suffice by referring there, and the reader will not be pleased. The statements are not at all consistent with the tolerant, placating tone that arises from the above affidavit presented in these proceedings. Which Ben Ari should we therefore believe?

9.         Ultimately, I inclined to the view that there is no justification for ordering Ben Ari’s disqualification. I have not arrived at this conclusion because I take incitement to racism lightly, but because I am strict in regard to the fundamental constitutional right to vote and to be elected. Given the strict criteria applied in the case law of this Court over the years, and in view of Ben Ari’s explanations and clarifications, there is doubt as to whether the statements amount to incitement to racism or a negation of the democratic character of the State of Israel to the point that would justify barring Ben Ari from running in the Knesset elections. Indeed, the fundamental right to vote and to be elected is not absolute. In appropriate circumstances, it is proper to limit it, but that is not the situation in his regard. While the evidentiary foundation in the matter of Ben Ari is broad in scope, it is not more exceptional, extreme and severe in “quality” and intensity than matters brought before this Court in similar cases (both in the Tibi case and the second Zoabi case). While Israeli democracy requires protection, it is still strong enough to comprise even Ben Ari as a member of Knesset (as we may recall, Ben Ari already served in the position in the recent past, in the years 2009-2013).

10.       This result is required for two additional considerations that are of a practical nature: First, the procedural framework in which we act. As we know, sec. 7A was presented to the Knesset together with the Penal Law (Amendment no. 24) Bill, 5745-1985, which established an express criminal prohibition upon incitement to racism. “We are determined to combat the phenomenon of incitement to racism with full force. To that end, we decided to act on two planes – on the constitutional plane, by including incitement to racism as a cause for the disqualification of a list of candidates from participating in Knesset elections, and on the penal plane – establishing an offense of incitement to racism in the Penal Law” (from the statement of the Minister of Justice, MK Moshe Nissim, in presenting the bills for a first reading; Knesset Record (5745), p. 2381). As opposed to the criminal process, which is conducted in accordance with a clearly defined framework of procedure, which includes, inter alia, an evidentiary proceeding in which it is possible to question and interrogate carefully, in the constitutional proceeding before this Court, the factual examination is far more limited. This requires us to be especially careful in drawing conclusions and establishing facts on the basis of the evidentiary foundation presented before us. Second, lest we forget: Even after a candidate has cleared the hurdle of sec. 7A, Israel is not bereft:[2] “The very fact that a candidate is permitted to contend in the Knesset elections does not mean that from the moment he is elected he may do whatever he pleases. There is still the possibility of rescinding the immunity of a member of Knesset in certain situations, placing him on trial if it be found that he committed a criminal offense, and terminating his tenure in the Knesset if he is found guilty of an offense of moral turpitude” (the first Zoabi case, para. 35 of the opinion of President A. Grunis).

11.       It cannot be denied that Ben Ari’s statements – at least in large part – are hard to digest. I was, indeed, very annoyed by his callous style, the racist tone, and the coarse generalities. It does not do honor to him or to those who listen to his teachings. We can and should protest against evil, and against those who seek our harm and our lives – foreign and domestic. But we are obliged – particularly as public servants – to do so responsibly and carefully. Nevertheless, even when common sense protests and the soul recoils from Ben Ari’s statements, there is still no justification for placing him beyond the pale. The strength of freedom of expression, the strength of democracy “is not the recognition of the right to speak pleasantries that are soothing to my ears. Its strength is in the recognition of the right of the other to say things that are grating upon my ear and that pierce my heart” (HCJ 14/86 Laor v. Theater and Film Review Board [22], p. 441). That is true of freedom of expression in general, and of political speech in particular, when what is at stake – we will not refrain from repeating – is a mortal blow to the fundamental constitutional right to vote and to be elected.

12.       I wholeheartedly concur with my colleague the President on our obligation to combat racism uncompromisingly. As a son of my people and a descendant of my family, I am well aware of where the terrifying harm of hate of the stranger and the different leads. But make no mistake, the two are not comparable, and not even close. And note: the struggle against racism is not only on the legal plane, but also – and primarily – on the educational plane, “in a reassessment of the ways of educators and pupils alike, in all walks of our society” (the first Neiman case, p. 302). In this regard, it would be proper to quote what Rabbi Zvi Yehuda Kook wrote in the month of Nissan 1947 in a letter to the principals and teachers of a Jerusalem school. The Minister of Justice, MK Moshe Nissim, quoted part of the letter, titled “Embarrassing and Sad Conduct of Children”, in presenting the bill in regard to sec. 7A to the Knesset plenum for a first reading, as follows:

To the Principal and Teachers of a school here in our Holy City, may it be rebuilt and reestablished!

I must bring the following matter to your honorable attention, as follows: This morning, while passing by the school on the way to Yaffo-Ben Yehuda Street, I saw some from among a group of children from the school repeatedly hitting and coarsely taunting Arab peddlers who passed there. Twice together – at the two Arabs, one young and one old, who were apparently partners, beginning with the younger one and continuing with the older one with particular coarseness. This occurred a short distance from the gate to the schoolyard. Then again at a youngster on the sidewalk of Jaffa Road, at the corner of Ben Yehuda Street.

I was saddened and very ashamed by what I saw. Due to their running and mischief, I was unable to catch them and rebuke them for this. I do not know who these children are, or who are their parents and teachers. I know only that they were from the school. Not all of them, not all of the group of children from the school, took part in that despicable harm and taunting, but some of them. And I believe that some of them protested.

Nevertheless, the very existence of this fact, which pained and insulted me, as noted, requires that I bring to your awareness the need for greater and special educational attention to bringing an end to such possibilities, both in and of itself as a matter of Jewish law and morality, and in terms of the practical community and political value of preserving peace and good neighborliness.

With all due respect and in the hope of the glorification of God and the salvation of his people and heritage.

            Here we see plain, clear, resolute, human Jewish morality. We must walk in its light.

13.       For the same reasons for which I was of the opinion that we should not order the disqualification of Ben Ari, I arrived at the conclusion that the Election Committee’s decisions in the matters of the Ra’am-Balad list and of Dr. Ofer Cassif should be overturned and that the appeal in regard to the Hadash-Ta’al list should be denied, and that we should hold that they are not barred from participating in the Knesset elections. As in regard to the decision is the matter of Ben Ari, this decision, as well, was not at all easy. Some of the statements presented to us – both those attributed to Cassif and those attributed to other members of the Hadash-Ta’al list – are not pleasant to the ear, to put it very mildly. But just as we are enjoined and stand ready to defend against those who would incite to racism and thereby undermine the democratic character of the State of Israel, so we must defend against those who would undermine its Jewish character and who express support – express or implied, publicly or privately – terrorist attacks and murder. In the course of the debate on sec. 7A, prior to its first reading, MK Michael Eitan rightly stated in this regard:

The State of Israel has a political need to provide an answer to a long list of families of Jewish victims who were harmed solely because they are Jews here in the State of Israel on the question of whether the purpose of defensive democracy, that has been and is employed, is to protect them, as well. Can Jews in the State of Israel who are harmed by the agents of the PLO also find an answer in such legislation that is intended to defend democracy to the fact that there are people in the State of Israel who identify with the PLO and see themselves as its agents? And there is also a Knesset faction that once sent a telegram expressing solidarity to the Palestine National Council in Amman, which identifies with the PLO. Where is defensive democracy in their regard? Where is the symmetry? Should democracy defend itself only against insane Jewish fanaticism?

                        […]

When we discuss the issue of defensive democracy, we have to provide an answer to the Bromberg family, the Tamam family, the Ohana family, and a long list of families that daily ask the simple question: Is the purpose of defensive democracy to defend us as well, or is the only answer that marginal group to which we all take exception? And when I ask that question, I understand that we are treading a delicate, sensitive line because we are concerned with a democratic regime, we are not interested in silencing debate, we are not interested in outlawing lists. But in any event, we must ask ourselves the question what is the boundary line?

14.       Indeed, the question of where the boundary lies is difficult. It would seem that thirty years after the constituting of sec. 7A of Basic Law: The Knesset, there is no clear, unambiguous answer to this. In any case, as presented above, the special importance of the fundamental constitutional right to vote and to be elected obligates us to strict criteria whose bottom line is that when there is doubt, there is no doubt. Therefore, and for the reasons stated in the opinion of my colleague the President, I am of the opinion that what has been adduced before us is insufficient for ordering the disqualification of the candidacy of Cassif, the Hadash-Ta’al list, and the Ra’am-Balad list.

15.       One parenthetical objection: In the matter of the Balad party, the Attorney General noted that “were the Balad party running independently … there would be reason to carefully consider its disqualification”. However, “in view of the fact that under the prevailing legal situation, there is no possibility of disqualifying only half of a list (as opposed to disqualifying an entire list or disqualifying specific candidates on the basis of evidence relating to them personally), and in view of the fact that there are almost no arguments against the Ra’am list, it is necessary to examine whether the existing evidence suffices to justify disqualifying the joint list, in view of the case law of the honorable Court in regard to the need to severely limit such a disqualification”. My colleague the President did not expand upon that matter, having found other reasons for not ordering the disqualification of Balad (although she attributed weight to the fact that we are concerned with a joint list). For my part, I find the present legal situation very problematic, when a party that prima facie meets the requirements of one of the causes for disqualification can join with another party such that the joint list provides it with a “city of refuge”. This should be given consideration when and if the need to address this question arises in the future.

16.       In conclusion, where my opinion accepted, we would overturn the Election Committee’s decision in EDA 1806/19; deny the appeals in EA 1866/19 and EA 1867/19, and grant the appeal in EA 1876/19, and hold that Dr. Ofer Cassif, Dr. Michael Ben Ari, Advocate Itamar Ben Gvir, the Hadash-Ta’al list and the Ra’am-Balad list are not barred from standing for election to the Knesset.

 

Justice A. Baron:

            I concur in the comprehensive opinion of President E. Hayut, both in the conclusion she reached in each of the proceedings before us and in her reasoning. I will briefly add my view of the disqualification of the candidacy of Dr. Michael Ben Ari (hereinafter: Ben Ari) for election to the 21st Knesset, in which we are concerned with an exceptionally extreme step, akin to a “doomsday weapon”.

            The racist statements in the warp and weave of all of the recorded statements of Ben Ari cry out from the page and scorch the ears. Words are not “just” words. There are times when words are also acts, and in the case of Ben Ari’s statements they constitute a clear act of incitement to racism. Ben Ari makes improper use of words to arouse hatred against the Arab public, while portraying all Arabs as murderers and bitter enemies. His statements delegitimize an entire community, instigate conflict and strife, and even call for actual violence against Israeli Arabs. Moreover, we were presented with a solid evidentiary foundation that clearly shows that we are concerned with a severe, extreme case of incitement to racism. The racist statements are explicit, systematic (some 40 instances since 2017 alone), constitute a dominant characteristic of Ben Ari’s statements, and gain wide exposure in the media and on the social networks.

            The principle of freedom of expression, and particularly freedom of political expression, is a cornerstone of a democratic regime. According to this principle, “freedom of expression is not just the right to say or hear what is generally acceptable. Freedom of expression is also the freedom to express dangerous, irritating, deviant ideas that the public reviles and despises” (HCJ 399/85 Kahane v. Broadcasting Authority [23], p. 280). Words and statements can thus find refuge under the aegis of freedom of expression even when they express marginal ideas, and even when they arouse disgust, but given their “critical mass”, as noted above, Ben Ari’s words constitute incitement to racism and therefore undermine fundamental principles of democracy. As the case law of this Court has already made clear, “one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14). In this regard, I would note that in my opinion, as well, incitement to racism does not merit any protection, and therefore there is no place for applying a “probability test” as a condition for the application of the cause under sec. 7A(a)(2) of Basic Law: The Knesset.

            Ben Ari did not apologize for his statements and did not retract them. And if that were not enough, even his explanations continue to reflect a racist attitude toward the Arab public. According to Ben Ari, his recorded statements are not directed against the entire Arab public, but only toward those among it who are not “loyal” to the State of Israel. However, the recordings deliver a clear message that any Arab is disloyal, a traitor, and enemy, and dangerous by definition. We are, therefore, concerned with an extreme case that requires Ben Ari’s disqualification from participating in the elections for the Knesset.

 

Justice D. Mintz:

            I concur in the opinion of my colleague the President in regard to the partial granting of the appeal in EA 1866/99 and with the holding that Ben Ari is barred from participating in the elections for the 21st Knesset, which is not the case in regard to Ben Gvir. I also agree that the appeal in EA 1867/19 should be denied, and that it should be held that the Hadash-Ta’al list is not barred from contending in the elections for the 21st Knesset. However, I cannot agree with the position in the matter of overturning the Election Committee’s decision in EA 1876/19 in the matter of the Ra’am-Balad list and in EDA 1806/19 in the matter of MK Ofer Cassif. In my view, those decisions should be left standing, and we should hold that the Ra’am-Ta’al list and MK Cassif are barred from participating in the elections for the Knesset, as I shall explain.

Foreword

1.         The starting point for this discussion is that the restrictions upon the constitutional right to vote and to be elected to the Knesset must be minimal, and they must protect the most vital interests of the state (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], pp. 802-803). This Court has recognized the justification for limiting those rights even before an express provision was enacted to permit the disqualification of a candidate or list from participating in the elections for the Knesset when it was long ago held that the right to vote and to be elected can be limited in order to protect the very existence of the state (EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the 6th Knesset [8], p. 387) (hereinafter: the Yeredor case); EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11th Knesset [4]) (hereinafter: the first Neiman case)). And as Justice J. Sussman stated: “Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map.” (the Yeredor case, p. 390). The restriction of rights is justified in the name of the right of a democracy to defend itself against those who would seek to employ democratic tools for the purpose of negating the very existence of the state, harm its fundamental principles or advance anti-democratic objectives (EDA 9255/12 Central Election Committee v. Zoabi [3], para. 8 of the opinion of President A. Grunis); EDA 1095/15 Central Election Committee for the 20th Knesset v. Hanin Zoabi [6], para. 7 of the opinion of President M. Naor) (hereinafter: the Zoabi case).

2.         The desire to prevent the use of democratic tools to advance anti-democratic objectives that undermine the existence of the state stood at the basis of the enactment of sec. 7A of Basic Law: The Knesset (hereinafter also: the Basic Law), to which various amendments were made over the years. The last, in 2017 (Basic Law: The Knesset (Amendment no. 46), 5777-2017 (hereinafter: Amendment no. 46)) clarified that a candidate could be disqualified if his objectives or actions, “including his expressions”, included the negation of the existence of the State of Israel as a Jewish and democratic state, incitement to racism or support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The legislature had its say and defined the boundaries of the right to vote and to be elected in light of the basic and most vital principles for the existence of the state.

3.         It should be noted that sec. 7A of the Basic Law is not the only legal provision that restricts the use of a right granted by democracy in order to prevent harm to the basic, most vital principles for the existence of the state in general, and its existence as a Jewish and democratic state in particular. This purpose is also expressed in the framework of sec. 5 of the Parties Law, 5752-1992, which denies the possibility of registering a party, inter alia, for the causes enumerated in sec. 7A of the Basic Law. Section 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 defines the limits of the material immunity granted to an elected official by virtue of his office in a manner similar to that in sec. 7A (HCJ 11225/03 Bishara v. Attorney General [13], pp. 306-307). As the President also noted, the Basic Law was amended in 2016 to include a provision authorizing the Knesset to end the tenure of a member of the Knesset for incitement to racism or for supporting armed struggle against the State of Israel (the cause of negating the existence of the State of Israel as Jewish and democratic was not included in the framework of that provision in view of its being general and more ambiguous, and upon the presumption that the Knesset plenum would have difficulty applying it (see: HCJ 5744/16 Ben Meir v. Knesset [12], para. 29 of the opinion of President E. Hayut).

4.         These supplementary provisions define a clear boundary beyond which actions, objectives and expressions are not legitimate for elected representatives and for a party or list of elected representatives. The gates of the house of representatives are not open to those who seek to harm the character of the State of Israel as Jewish and democratic (including the cause of “incitement to racism”, which constitutes a special case of harm to the democratic foundations of the state) or to support an armed struggle against it and thus to support a threat to its very existence. What is concerned are actions that do not afford material immunity for those who succeeded in being elected to the house of representatives. Some of those causes also permit the termination of the tenure of those who seek the state’s harm. The underlying premise is that a person who seeks to take an active part in Israeli democracy and its institutions must accept the principles of its existence and the democratic “rules of the game” (see, for example: EDA 11280/02 Central Elections Committee v. Tibi [1], p. 23 (hereinafter: the Tibi case)). This, even though such actions or expressions may sometimes fall within the bounds of freedom of expression granted to every person in the state. In other words, what is permitted to every person is not necessarily granted to a person who seeks to be elected to the legislature. The reason for this is clear: the principle of freedom of expression grants every person the freedom to express himself even in a manner that contradicts the principles of the Jewish and democratic regime of the State of Israel (within the bounds of the law). However, permitting a person who voices such ideas to be elected to the legislature may lead to a situation where he will “import” his ideas into the legislature and thus undermine the foundations of the regime upon which the state rests by implementing or realizing his ideas. In this regard, Justice T. Strasburg-Cohen nicely distinguished the two (in the Tibi case, p. 70):

It would be appropriate to note that Israeli democracy does not prevent Knesset Member Bishara from expressing his views, which he terms “theoretical”, “philosophical”, or “historical”, from any platform, in accordance with the law. However, as far as membership in the Knesset is concerned, those views that are part of his political views, and he seeks to implement and realize them, inter alia, by means of his membership in the Knesset. Therefore, those views greatly deviate from theory, philosophy, and history and cross into the area of political activity.

 

The Causes for Disqualification and Amendment no. 40 of the Basic Law

5.         The criteria established in the case law in regard to the implementation of the provisions of sec. 7A of the Basic Law were clarified at length by the President, and I do not intend to dwell upon the matter. I will only say a few words about the distinction in the framework of this provision between disqualifying a candidate and disqualifying a list from participating in the Knesset elections. Thus, while the section establishes that “a list of candidates shall not participate in elections to the Knesset … should there be explicitly or implicitly in the goals or actions of the list …” (emphasis added – D.M.) one of the causes enumerated therein. The wording in regard to the disqualification of a candidate is somewhat different. As it reads at present, after Amendment no. 46, the disqualification of a candidate shall be possible “should there be in the actions of the person, including his expressions” one of the causes enumerated in the section. This difference is no trifling matter.

6.         As we know, a law is interpreted in accordance with its language and purpose. First, the starting point of interpretation is the language of the law, where the written text should be given the meaning that its language can carry (Aharon Barak, Interpretation in Law – Interpretation of Statutes 81 (1993) (Hebrew) (hereinafter: Interpretation in Law); HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner [24], para 9). The language is the framework for the work of the interpreter, and he may not breach it (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset [5], p. 702). When the text tolerates different meanings, the interpretation that realizes its purpose should be chosen (Interpretation in Law, 85). In the present matter, as noted, Amendment no. 46 added the words “including his expressions” to sec. 7A of the Basic Law in regard to a candidate. According to the plain meaning, statements that can undermine the existence and fundamental principles of the state are sufficient to lead to the disqualification of a candidate from being elected to the Knesset, and there is no need for acts. That is also the interpretation that is consistent with the purpose of the section, which is intended to contend with those who seek to employ democratic tools in order to further anti-democratic objectives.

7.         Indeed, as the President noted, the Explanatory Notes to the bill state that the amendment was not intended to change the case law of the Court “according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state” (H.H. Knesset, 675). It is also important to explore the legislative history of legislation, through which it is possible to ascertain the legislative intent and purpose (Interpretation in Law, 161; CA 4096/18 Chacham and Or-Zach v. Assessment Officer [26], para. 20). However, I cannot concur with the position that the language of the amended provision is meaningless and that what has been is what will be. As has been said: “The legislative purpose, and certainly the legislative history, cannot give the law legal meaning that it cannot bear” (Interpretation in Law, 353). Indeed, there is nothing in Amendment no. 46 that would violate the principle that the provisions of sec. 7A of the Basic Law be interpreted narrowly. I also accept that the words of a candidate or the Knesset, as well as his deeds, be examined meticulously, inasmuch as disqualification remains an extreme act that should be employed only in exceptional circumstances, as has been held in the past (see, e.g., EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18th Knesset [2], para. 3 (hereinafter: the Balad case)). Nevertheless, that does not mean that the amendment does not affect the causes for disqualification established under sec. 7A of the Basic Law as we knew them in the past.

8.         First, one cannot ignore that in the past, the view was expressed in the case law of this Court that “expressions”, as opposed to “actions” do not fully fall within the compass of sec. 7A of the Basic Law. Thus, for example, in the Zoabi case, Justice H. Melcer noted: “An action in Israel’s sub-constitutional law does not generally include expression, and therefore, when the legislature sought to treat of expressing an opinion orally or in writing, it did so separately, alongside the action, or defined: “an action including an expression” (para. 2b of his opinion; and compare para. 121 of the opinion of Deputy President Rubinstein in the same matter). If, at the time, there was any doubt whether “expressions”, as distinct from “actions”, could be included under the provisions of sec. 7A of the Basic Law, then since the enactment of Amendment no. 46 of the Law, it has been expressly clarified. The legislature made itself unambiguously clear that the power of a word is as good as the power of an action. As was said: “Death and life are in the hand of the tongue” (Proverbs 18:21), “Does the tongue have a hand? This comes to teach us that just as the hand can kill, so the tongue can kill…” (Babylonian Talmud, Arakhin 15b).

9.         Second, although the line separating “expression” and “action” is not always clear, we cannot ignore that the interpretive principles outlined in the past in regard to the causes for the disqualification of a candidate placed emphasis on the candidate’s actions as against his expressions. Thus, for example, “actions” that must be given severe, extreme expression was spoken of (the Tibi case, p. 17). As for the third cause, which concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel, it was held that such “support” can be “material” or “political” (the Tibi case, p. 26; the Balad case, para. 7). Thus, Amendment no. 46 has the potential to change the criteria that were developed for the disqualification of a candidate, which have, until now, been based upon those established for the disqualification of lists.

 

The Probability Test

10.       Another matter that requires examination, and which should be addressed prior to diving into the appeals before us, is the question of the applicability of “the probability test” noted by the President, that is, whether the participation of a party or a candidate can be prevented from participating in the elections where it has not been proven that there is a probability that they may actually realize one of the causes established under sec. 7A of the Basic Law. This question already arose in the first Neiman case, which was adjudicated prior to the enactment of sec. 7A of the Basic Law, in regard to the disqualification of a list. In that matter, Justice A. Barak expressed his view that although the matter was not expressed in either the majority or minority opinions in the Yeredor case, the disqualification of a list is possible only when there is a “reasonable possibility” that the party’s platform will be realized in practice. However, after the enactment of sec. 7A of the Basic Law, it was clearly established in EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12th Knesset [5], 188 (hereinafter: the second Neiman case) that:

In setting forth the principles of sec. 7A, the legislature did not require the existence of a clear and present danger, the probability of danger arising from the objectives and conduct of the party in question, or any similar test that looks to the connection between the condemned action and the possible results. Through this, the legislature changed the legal status until the enactment of Basic Law: The Knesset (Amendment no. 9).

            Thus, in enacting sec. 7A of Basic Law: The Knesset, the legislature abandoned the possibility of “the probability test”. In this regard, I join in the comments of my colleague Justice M. Mazuz. The provisions of the Basic Law contain no requirement for a reasonable possibility of the actual realization of the threat arising from the actions or platform of the list or its objectives (or from the actions of a candidate or his objectives, under the current wording of the section). There is firm support for the view that the matter was decided long ago in the second Neiman case, despite the questions that later arose in the Tibi case. In brief, I would note that I also find great substance in the view of Justice E. Mazza in the Tibi case (pp. 98-99) that making disqualification contingent upon the probability test could render sec. 7A devoid of all content, inasmuch as the more extreme, severe and outrageous the message, the less the probability of its actually being realized.

 

Critical Mass

11.       The case law of this Court has established that in order to approve a disqualification decision, the Court must have before it evidence that is “persuasive, clear and unambiguous” (the first Neiman case, pp. 250-251; the second Neiman case, p. 197). When the Court is convinced that such evidence has been laid before it, then the material thus constitutes the critical evidentiary “mass” required in this regard (see: the Tibi case, p. 42). This evidence can satisfy the Court as long as it is convinced of its truth, as the Court does in every matter given to its decision.

            This is not a quantitative but a qualitative test. If, for example, the Court is convinced by a single piece of evidence (and unlike this case in which there is a compendium of evidence) that can decide the matter in a certain direction, then it can base its decision thereupon. Only then will that single piece of evidence constitute a “critical mass”. As opposed to this, sometimes there is an accrual of many pieces of evidence whose force does not tip the scales and it will not constitute a “critical mass”. There is nothing actually new in this (see, for example, in the various proceedings: CrimA 7007/15 Shmil v. State of Israel [27], para. 22; CA 8742/15 Astrolog Publishers Ltd., v. Ron [28], para. 44; Yaakov Kedmi, On Evidence, Part IV, 1761ff. (2009) (Hebrew)). Indeed, the force of the evidence required for a decision changes in accordance with the category of the matter given to the Court’s decision. Sometimes, evidence that banishes all reasonable doubt is required. Sometimes, evidence that tips the scale of probability is required. Sometimes, “administrative” evidence of varying degrees is required. This, too, is not new (see, for example: CrimA 961/16 Alharoush v. State of Israel [28], para. 15; AAA 3326/18 A. v. Director of Firearm Licensing [30], para. 20). The present matter requires highly persuasive administrative evidence, and not necessarily a large amount of evidence. It is not the quantity that is decisive, but the quality.

            And now to the matter before us in the proceedings in which I disagree with my colleagues.

 

EA 1806/19 In the Matter of Cassif

12.       As noted, my colleagues decided not to disqualify Cassif’s candidacy for the Knesset elections, and I cannot concur. In my view, an examination of the material presented to us reveals that there is no room for doubting that Cassif’s statements clearly cross the legitimate boundaries defined in the framework of sec. 7A of the Basic Law. Thus, inter alia, Cassif published the following:

Uniting the democratic forces for a struggle against the Judeo-Nazism that is taking over our society is not enough, although it is certainly needed, there is a necessity for changing the methods, you don’t sing songs against fascism, you fight (report on Channel 20, May 22, 2016, quoting Cassif).

            In another report, he is heard saying that “in the Israeli discourse that the current Israeli government has created, killing Arabs is legitimate. This is how one descends into the abyss of what happened in Germany 80 years ago” (report of Channel 20 of April 12, 2018). Similarly, in regard to the Hamas, which is known to be a terrorist organization that is waging a murderous war of terror against Israel (and see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior [31], para. 10 of the opinion of Deputy President M. Cheshin), Cassif is quoted as saying that the organization is a “political party” (report on Channel 20 of April 11, 2018). In addition, in an article on the Makor Rishon website from Feb. 7, 2019, it is reported that in the course of an interview with him, he stated that the State of Israel must not be a Jewish state. In addition to those statements, his clear, unambiguous statements expressed in a personal interview in the Ha’aretz supplement of Feb. 8, 2019, entirely fall within the scope of two of the causes for disqualification under sec. 7A: negation of the existence of the State of Israel as a Jewish and democratic state, and support for armed struggle by a terrorist organization against the State of Israel. Thus, Cassif presented an unadorned statement of his worldview, which includes the revocation of the Law of Return, 5710-1950 (hereinafter: The Law of Return) (p. 28 of the interview) and changing the symbols and anthem of the state (p. 26 of the interview).

            One cannot ignore that it is his position that The Law of Return should be revoked, as if it were a stumbling block rather than a law that expresses a supra-constitutional principle grounded in the Declaration of Independence, the Jewish people’s right to self-determination, and its connection to its homeland (see, for example: HCJ 7625/06 Rogachova v. Ministry of Interior [31], para. 28 of the opinion of President M. Naor; Ariel Bendor & Elichai Shilo, Israel as a Jewish State: Constitutional Significance, in Strasburg-Cohen Volume 160 (2017) (Hebrew)). Cassif’s clear statements fall completely within the bounds of statements that express the negation of the most nuclear foundations of the State of Israel as a Jewish and democratic state, as defined long ago in the Tibi case.

13.       However, these statements are dwarfed in their intensity in view of what Cassif stated about harming IDF soldiers. This is what he said:

Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable (p. 26 of his interview with Ha’aretz).

            We are concerned with matters that are most explicitly included in the cause for disqualification for support for armed struggle against the State of Israel. The fact that harming soldiers, in certain circumstances, is viewed differently from harming civilians under international law, or that it can be defined, according to Cassif, as “guerilla warfare”, does not change the fact that his statements explicitly express granting legitimacy and support for armed struggle against the State of Israel in accordance with the cause of disqualification under sec. 7A of the Basic Law. We are concerned with clear, unambiguous statements that cannot otherwise be interpreted or explained. There is “cold comfort” in that Cassif does not see such harm as “something wonderful, delighting, or desirable”.

14.       I do not find any real repudiation of these strong statements in Cassif’s statements before the Central Elections Committee or in the affidavit he submitted to the Committee, other than a denial of things attributed to him in the Makor Rishon newspaper (sec. 10 of the affidavit submitted to the Elections Committee), which, in any case, can be given only minimal weight in view of their being “second hand”. Cassif tried to place his extreme statements in a “political” context (pp. 29-30 of the transcript of the Elections Committee hearing of March 6, 2019), but this does not constitute a retraction of his harsh statements. In view of the severity and clarity of the statements, a general declaration alone, as Cassif expressed in para. 9 of his affidavit to the Elections Committee, is insufficient: “The request to disqualify my candidacy is a factual distortion and misleading interpretation of my words, and I therefore completely deny what is cited there”. It might have been expected that Cassif would clarify what that “factual distortion” was, and what misleading interpretation was given to the words. But other than this general, vague statement, what Cassif declared is insufficient to refute the existence of the solid evidence grounding the causes for disqualification.

            Cassif indeed notes, in a general way, in his affidavit that he “opposes all forms of violence against any person” (Cassif’s affidavit of March 3, 2019, para. 11). However, he in no way retracted the things he said in that interview – and not what he said in regard to harming IDF soldiers, in particular. On the contrary, in his affidavit, Cassif emphasized that in that interview in the Ha’aretz supplement he noted that he opposes harm to innocent civilians (ibid.). And as for harming IDF soldiers? Cassif’s silence is deafening.

15.       In his affidavit, Cassif reiterates his explanation that the statements attributed to him are, at most, “isolated” statements that “were made in order to sharpen a particular idea”, that the style of expression that included the term “Nazi” is not “characteristic” of him in general, that the statements were made in the heat of political debate, and that we are merely concerned with metaphor (para. 13 of the affidavit to the Elections Committee of March 3, 2019). However, it cannot be said that Cassif denies those expressions, retracts or denounces them, but at most, he explains them with various excuses. In the hearing before the Elections Committee, as well, Cassif did not express a clear, concrete disclaimer as to what he said, and in particular, I did not find any clear disclaimer of the statement that there is legitimate and moral justification for harming IDF soldiers. In the end, Cassif was kind enough to tell the Committee that he opposes violence (p. 34 of the transcript of the Elections Committee hearing of March 6, 2019). But that, as noted, is not enough. General statements according to which he rejects and opposes violence are insufficient in view of his sharp, clear statements in regard to harming IDF soldiers. According to Cassif’s approach, harming soldiers is not a form of “violence”. Moreover, when he was expressly asked in the Elections Committee hearing: “When you justify terrorist attacks upon IDF soldiers, is that not violence?” (ibid.), he did not provide a pertinent answer. In response to the question, he diverted to the causes for disqualification: “We are speaking here the language of the law, and we are talking about whether there are causes for my disqualification in light of Basic Law: The Knesset…”, while he repeated his general position that “I never even hinted at support for armed struggle or violent struggle at all. That is one cause that I do not meet”.

16.       Even Cassif’s repeated excuse that he made the statements as a “regular citizen” and not as a public representative, and that he would “not necessarily” use those expressions if he were elected to the Knesset (para. 13 of the affidavit submitted to the Elections Committee), do not work to his benefit. Cassif is currently being examined in regard to what he has already said, and upon opinions he has already expressed as a citizen. I would note in this regard that it is clear that the provisions of the law look to the future and do not seek to “punish” a candidate for his conduct in the past, but rather to contend with the fear of an elected official exploiting his status to perform improper acts (see: the Tibi case, p. 64). However, in order to answer the question whether the actions of the list or a candidate meet one of the causes for disqualification listed in sec. 7A of the Basic Law, the evidence that has accumulated in regard to that list or candidate must be examined, and this, naturally, often means before they were elected to the legislature. How can one accept the argument that Cassif should not be held accountable merely because we are concerned with statements that he made as a private individual? Every statement and action of a candidate (who has not served as a member of the Knesset in the past) is examined with consideration for the fact that the person concerned is a private individual seeking that the gates of the legislature be opened before him. Every such candidate is examined with consideration for things that he said before being elected as a public representative, while the accumulated material will always be from the period prior to his candidacy.

17.       Moreover, the argument by Cassif’s attorney that only “ideas on an intellectual basis” were concerned, cannot be of help. Statements supporting armed struggle against Israel and the negation of the existence of the State of Israel as a Jewish state cannot be explained away by saying that they concerned an “intellectual” debate (see, for example, the Tibi case, p. 70, which was quoted above in para. 4). This is all the more so in view of Amendment no. 40 to Basic Law: The Knesset of 2017, which made it clear, as noted, in accordance with the interpretive rules set out, that a candidate will be disqualified if his objectives or actions, “including his expressions”, constitute a negation of the existence of the State of Israel as Jewish and democratic, incitement to racism or support for armed struggle by a hostile state or terrorist organization against the State of Israel.

18.       As noted (in para. 4, above), the provisions of sec. 7A of the Basic Law create a distinction between the legitimate right of every person to express “ideas on an intellectual basis”, whatever they may be, from every platform (subject to very limited constitutional restrictions) and the statements of a candidate for election to the Knesset, where such a person seeks to move to the area of political activity. In accordance with the dictate of the legislature, theoretical ideas are examined from a different perspective when a person seeks to realize them by means of membership in the Knesset. Were Cassif’s statements examined as of an ordinary citizen, one might say that they are infuriating and enraging or that one should forcefully take exception to them, but they are protected as free speech. However, once Cassif sought to be elected to the Knesset, we must examine whether we are concerned with statements that express support for armed struggle by a terrorist organization against the state of Israel or whether they negate the existence of the State of Israel as a Jewish state, in the sense of denying its core foundations as established in the Tibi case. If the answer is positive – and as noted, I find it difficult to think otherwise – the candidate cannot rely upon the argument that the statements were made by him as “a private person” and that he is, therefore, exempt from answering for them. That is so in view of the purpose of sec. 7A, which, as noted, limits the use of the right granted by democracy, and in the present matter, the right to vote and to be elected, in order to prevent harm to the most basic, essential principles of its existence.

            In any case, once Cassif chose to clarify in his affidavit that he would “not necessarily” use the same expressions once elected to the Knesset (para. 13 of his affidavit), the excuse that the statements were made by him as a private individual cannot be maintained. Cassif is even unwilling to declare that those severe statements will no longer leave his lips as a public representative. Cassif himself made it clear that even after being elected, it is not necessarily the case that he will not repeat those things. In so doing, Cassif also declares that he refuses to accept the rules of the game – even if ultimately elected to the legislature (which actually occurred while these lines were being written).

19.       Indeed, not infrequently, a candidate will seek to “fix up” the positions that he publicly flaunted after he is threatened with disqualification, and in the framework of disqualification proceedings he will seek to explain that things are not what they seem. However, as a rule, a candidate’s request to deny his public statements – statements that often are those that paved his way to election to the Knesset and upon which the public trust in him was based – should be taken with a grain of salt. Dissociating from such statements in the disqualification proceedings may show those “corrected” positions to be stated solely to evade the verdict, as lip service, and not reflecting an authentic position (see: the opinion of Justice E. Rubinstein in the Zoabi case, para. 48). Cassif’s statements should be measured by the same criterion by which Ben Ari’s statements were measured. The two should not be distinguished. In a certain sense, Amendment n. 46 closed the gap between the evidentiary requirement for proving the causes for disqualification in regard to negation of the existence of the State of Israel as Jewish and democratic and support for armed conflict against the State of Israel and that of the cause of incitement to racism. Just as incitement to racism generally disqualifies by means of verbal statements (as also noted in para. 47 of the position of the Attorney general in EDA 1866/19), so too, the other causes disqualify through expression. If not identical, the evidentiary level of all the causes for disqualification should be similar.

            Just as Ben Ari’s statements disqualify him from running for the Knesset – despite his claim that he “is not a racist”, so Cassif’s words should disqualify him – despite his general claim that he “opposes violence” of any kind. The result should be identical for both.

20.       However, in certain circumstances, the gates can be opened to a candidate who retracts his statements. This, for example, if the candidate convinces that the evidence presented refers to old events, while declaring that he has changed his ways (that is the situation in the matter of Ben Gvir). A candidate who changes his ways is like a “penitent”, of whom the sages said: “In the place where penitents stand, even the wholly righteous cannot stand, as it is stated: Peace, peace upon him who is far and him who is near” (Babylonian Talmud, Berakhot 34b). Such a person is unlike one who “confesses but does not repent” who is likened to one who “immerses himself with a reptile in his hand”:

R. Adda b. Ahava said: To what can one compare a person who has sinned and confesses his sin but does not repent? To a man holding a reptile in his hand, for even if he immerses himself in all the waters of the world his immersion is useless for him. But if he throws it away, then as soon as he immerses himself in forty se'ahs of water, his immersion is immediately effective, as it is said: “He who confesses and gives them up will find mercy” (Babylonian Talmud, Ta’anit, 16a).

            A fortiori in the case of Cassif, who does not even confess his expressions. Even before the Elections Committee, and in his affidavit as well, there is no retraction of his words, nor a declaration that he has changed his path. The paltry statements that Cassif uttered do not come close to the vitriolic statements that he uttered from a public platform. On this it has been said: “He who covers up his faults will not succeed,” as opposed to “He who confesses and gives them up will find mercy” (Proverbs 28:13).

21.       The State of Israel, as a Jewish and democratic state, is obligated to defend itself and to act against those who oppose it. My colleagues defend Cassif, and it has, indeed, been said, “Judge your neighbor justly” (Leviticus 19:15). Relying upon the Gemara in tractate Sanhedrin, Rashi explains: “Judge your neighbor favorably”. However, the Siftei Chachamim [Shabbethai ben Joseph Bass (1641–1718)] adds: “That is to say, specifically when he is your neighbor judge him favorably”. In other words, when he behaves like your neighbor. In my opinion, there is no doubt that the terrible things said by Cassif do not allow us to judge him favorably, and they clearly and unambiguously meet the causes for disqualification that seek to protect the state against its destroyers and block their path to being counted among its legislators.

22.       To summarize this section, as noted, Cassif presented the core of his social and political approach in the interview with him and before the Committee, and his extreme, severe and unambiguous statements express dominant, central, core characteristics of his approach. We are concerned with persuasive, clear evidence that constitutes a “critical mass” that indicates support for armed conflict and terror against Israel, and negation of the existence of the State of Israel as a Jewish state. The force of the evidence is bolstered by the absence of clear, concrete repudiation of his statements by Cassif.

            In my opinion, all of the above unequivocally suffices to ground the causes for disqualification in sec. 7A in accordance with the criteria and proper interpretation as delineated above and that are long established by this Court.

 

EA 1876/19 In the matter of Balad

23.       Here too, as opposed to the view of my colleagues, I am of the opinion that that there is no room for doubt that the Balad list openly undermines the State of Israel’s existence as a Jewish and democratic state and openly supports armed struggle by a terrorist organization against the State of Israel.

24.       The evidence presented includes various statements and actions by members of Balad, some from the immediate past. Additionally, the petitioners requesting Balad’s disqualification referred to Balad’s activity in the past, and to the statements and actions of it former head – MK Azmi Bishara – and to the relationship between its activity and its current Knesset members to Balad’s former leader. In addition to all of that, it was argued that the “State of all its Citizens” bill (hereinafter: the bill) that the Balad Knesset members sought to present before the 20th Knesset last June makes it unequivocally clear that Balad expressly denies the existence of the State of Israel as a Jewish State.

            In this regard, and even were I of the opinion that no significant weight should be accorded to the other evidence to which I will refer later, I am of the opinion – like position taken by the President in para. 58 of her opinion, with which I fully concur – that no one can deny that the bill expresses a negation of “nuclear characteristics” of the State of Israel as a Jewish state. Presenting the bill crossed the line sharpened in the Tibi case, which distinguished between one who supports a “state of all its citizens” in the sense of achieving civil equality and one who seeks to negate the minimal, core characteristics of the State of Israel as a Jewish state. Moreover, after reviewing the opinion of my colleague Justice Mazuz, I would add that, in my opinion, not only does the bill express a negation of “the nuclear characteristics” of the State of Israel, as noted, but even denies the existence of the State of Israel as “the State of the Jewish people in the national sense”. This, in reference to the identity of the state as a place where the Jewish people realizes its right to self-determination, as my colleague so well expressed in his opinion.

            In order to understand the consequences of presenting this bill in regard to examining the disqualification of the list, I will expand somewhat on the prior proceedings in the matter of Balad.

25.       The matter of Balad was addressed in the elections for the 15th Knesset (EA 2600/99 Ehrlich v. Chair of the Central Elections Committee [33] (hereinafter: the Ehrlich case)), and in the elections for the 16th Knesset (the Tibi case), as well as in the elections for the 18th Knesset (the Balad case). Already in the Ehrlich case in 1999 – which addressed the matter of MK Azmi Bishara, who led Balad, along with the matter of the list (when the provisions of the law permitted only the disqualification of a list and not a candidate) – it was made clear that, on their face, Bishara’s statements at the time, declaring that the Jewish people does not have a “right to self-determination”, constituted a denial of the existence of the State of Israel as the state of the Jewish people. Indeed, it was ultimately found that Balad’s candidacy should not be disqualified despite coming “dangerously close” to the line that cannot be crossed that is defined in sec. 7A of the Basic Law.

26.       In the Tibi case (in the framework of which the matter of the party was examined in a manner identical to that of Bishara, given the “powerful” connection between them), it was found that the actions attributed to Bishara in regard to the negation of existence of the State of Israel as a Jewish state and in regard to support for armed struggle were at the heart of its purposes and constitute a dominant objective of its activity that constituted a political potential that was realized in repeated activity and with great force. However, persuasive, clear and unambiguous evidence against Bishara was not found, and thus not against the Balad list, when it was held that Bishara’s approach as to the State of Israel as a “state of all its citizens” “comes dangerously close to the possibility of negating the existence of the State of Israel as a Jewish state”, but it was not found that the “border had been crossed” (the Tibi case, p. 42). In addition. It was not found that there was sufficient evidence in regard to support of armed struggle, although there was some “doubt” in that regard (ibid.).

27.       Some clarification is required in this regard. In the Tibi case there was a difference of opinion as to the meaning of the phrase “a state of all its citizens” that appears in Balad’s platform. It was held that the principle of “a state of all its citizens” can take various forms, and that a purpose that sees Israel as “a state of all its citizens” does not inherently negate the existence of the State of Israel as a Jewish state. Thus, a person who acts to achieve the purpose of “a state of all its citizens” in the sense of guaranteeing equality among citizens is not the same as a person who employs that principle in order to infringe the rationale grounding the establishment of the state and thereby negates the character of the State of Israel as the state of the Jewish people (the Tibi case, p. 22).

28.       The minority was of the opinion that the evidence, taken in its entirety, showed that the expression “a state of all its citizens” served as a codeword for “abolishing Zionism, abolishing the State of Israel as the national home of the Jewish people, and abolishing the state as a Jewish state and replacing it with another state, if not more than that” (para. 2(b) of the opinion of Deputy President (emer.) S. Levin), and that striving for “a state of all its citizens” was intended to strip the State of Israel of Zionism and of its Jewish national character (para. D of the opinion of Justice E.E. Levi).

29.       As opposed to that, the majority, as noted, did not find that the meaning of “a state of all its citizens” in regard to Bishara “crosses the line” in regard to the negation of the existence of the State of Israel as a Jewish state. This, after finding that Bishara recognized the right of every Jew to immigrate to Israel, did not argue for the repeal of the Law of Return, did not deny the centrality of the Hebrew language as the language of the state, and did not oppose the holidays and symbols of Israel (also see: para. 54 of the opinion of President E. Hayut).

            In other words, in the Tibi case, as well, where it was found that striving for the objective of “a state of all its citizens” in regard to Bishara and Balad was close to the disqualifying boundary, a remedy was found in the form of non-negation of the core principles of the State of Israel as a Jewish state. The Court reiterated this position that the principle of “a state of all its citizens” in Balad’s platform does not ground a cause for disqualification in the Balad case. There, too, Justice E.E. Levy, dissenting, noted that in his opinion, the vision of Balad in regard to “a state of all its citizens” was nothing but a guise for the establishment of an Arab national state in all the territory of the Land of Israel.

30.       Thus, when examining the expression “a state of all its citizens” in the framework of Balad’s platform in the past, this Court was forced to cast about in order to discover what inhered in the concept and what meaning to give it. Where a doubt was found, the doubt worked in favor of approving the list, in view of the criteria established in regard to disqualifying a list. However, now that Balad has clarified – in the framework of dominant, significant, public and clear political activity – the significance of the expression “a state of all its citizens” for it, and the steps that it is willing to take in order to realize that vision, it can no longer be said that we are concerned with an ambiguous term. Now, following the presentation of the bill, it has been made absolutely, unambiguously clear that for this list “a state of all its citizens” means annulling the principle of return, denying the principle by which the state’s primary symbols reflect the national revival of the Jewish people, and denying the Hebrew language as the primary language of the state. It cannot now be said, by any criterion, that we are not concerned with the negation of minimal, nuclear elements of the State of Israel as a Jewish state, as held in the Tibi case.

31.       The fact that the bill was ultimately not brought before the plenum – only because on June 4, 2018 the Knesset presidium decided upon the drastic step of not approving its presentation to the Knesset – cannot be accounted to the list’s benefit, which argues that it is being retaliated against merely because it raised a theoretical “idea”. We are not concerned with just an “idea”, but rather with a concrete act – submitting a bill that sought to ground principles that undermine the existence of the State of Israel as a Jewish state (and also see in regard to expression by means of submitting a bill: the second Neiman case, p. 196). In view of this bill, I also find problematic the claim by the Balad list in its appeal that the requests for disqualification were not based upon a clear, direct statement, its publications, or official notices. What is a bill if not a “clear, direct statement” that expresses the values of the list and the principles that it pursues in the most simple, “clean” manner? What need do I have in looking for publications, official notices and so forth given the submission of a bill that seeks to undermine the most nuclear foundations of the state as a Jewish state? MK Mtanes Shehadeh’s “excuse” in his affidavit (affidavit of March 3, 2019 that was presented to the Elections Committee) that the bill was submitted only to “challenge the Nation State Basic Law and to hold a public debate on the issue” changes nothing in this regard or “kosher” this clear public step. On the contrary, even if the bill was submitted out of a sense of anger and grievance, I do not see how that could act in the list’s favor. Even if the members of the list presented the bill in a moment of rage, the saying goes: “By three things may a person's character be determined: By his cup, by his purse, and by his anger” (Babylonian Talmud, Eiruvin 68b). Rashi explains there: “In his anger – that he is not too hot tempered”. It is precisely when one is roiled and angry that a person is judged, and not when he is calm and at ease.

32.       Under these circumstances, no weight can even be given to what is stated in the affidavit that Shehadeh submitted to the Elections Committee that he and the members of Balad are committed to the principle of “as state of all its citizens” as reflected in the in Balad’s platform that was examined and approved long ago by this Court.  Balad itself clarified – in its own voice and not in the framework of quotes from newspaper articles that may be given to different interpretations – in the petition that it submitted to the Court (HCJ 4552/18) that the bill was consistent with its platform. In this sense, the claim that Balad now adheres to the platform that was examined and approved long ago – before the true nature of its vision of “a state of all its citizens”, which was recently publicly clarified and expressed as noted by Balad – cannot be accepted.

33.       That being the case, and in view of the background detailed above, I am of the view that there is no alternative but to say that by presenting the bill, and certainly in filing the petition (HCJ 4552/18) by members of Balad in which it was made clear that the bill was consistent with Balad’s platform, the Balad party crossed the line to which it had come “dangerously close” more than once in the past. In this context I would note that presenting the bill was an expression of real, substantial, clear parliamentary activity that, in my view, cannot be dismissed as a one-time or sporadic matter, as is the opinion of my colleague Justice Amit.

            The argument presented by Balad’s attorney that the matter of the bill was not raised before the Elections Committee but first and unexpectedly in the position of the Attorney General submitted to this Court, and that he is therefore unprepared to address it, cannot be accepted. Not only was this matter expressly raised in the framework of the disqualification request presented to the Elections Committee (paras. 17-24 of the Likud faction’s request to disqualify Ra’am-Balad), and not only was it raised in the hearing before the Elections Committee (p. 4 of the transcript of the hearing of the Elections Committee of March 6, 2019), but it was also addressed on the merits by Balad’s attorney, who raised the same claim made in that hearing that he raised before us that this is retribution merely for raising an “idea” (p. 35 of the transcript off the hearing before the Elections Committee of March 6, 2019). Moreover, the Ra’am-Balad list also expressly referred to the matter of the bill in the appeal that it submitted to this Court (paras. 23-25 of the appeal in EA 1876/19).

34.       In any case, beyond the fact that submitting the bill (together with what was stated in the petition) significantly and unambiguously grounds the said cause for disqualification, this bill does not exist in a vacuum. The bill is not the only evidence under consideration, although it would appear to be decisive evidence in and of itself. Additional evidence was presented that when added together points to a collection of evidence and a “critical mass” that demonstrates that we are concerned with a list that has raised the banner of open struggle against the foundations of the State of Israel.

35.       In this framework I would note that I do not believe that the fact that Balad’s activity and members were examined in the past renders addressing them now superfluous. Are we not required to examine the matter of Balad in accordance with the up-to-date material presented to us, which also casts light upon what was presented in the past? When the matter of Balad was examined in the past, the Court had before it the material that had accrued up to that date. Given that additional evidence has accrued in the interim, which might have led the Court to a different conclusion at that time, we cannot continue to rely upon conclusions drawn in the past from the material presented then while ignoring the updated material.

36.       Given the above, an examination of the entirety of the evidence in the matter of Balad and its members shows that this time it has gone too far. Even if in the past, the material presented in regard to it and its members came close to the bounds defined in the Basic Law but did not cross them, today the situation is different. Indeed, this Court found that MK Zoabi’s participation in the Marmara flotilla did not disqualify her from standing for election to the Knesset (the Zoabi case). However, I believe that weight should be accorded to her actions in examining the disqualification of the list of which she is a member (even if not in a “realistic” place), and in view of the additional evidence that has accrued in regard to that list since the Zoabi case. This is also true in regard to the Bishara matter, which was addressed in the past in the Ehrlich case and the Tibi case. Only later, as was also noted in the matter of Balad (in which the matter of Bishara was not addressed as he had left the country), it became clear that Bishara was suspected of serious security offenses pursuant to which he was forced to flee the country. Therefore, in examining the current evidentiary foundation in regard to the list in its entirety, weight should also be given to this matter (even though Bishara no longer stands at the head of the party). In view of the above, can one imagine that if the matter of Bishara were examined after new material came to light that pointed to serious suspicions of committing offenses, this Court would rely upon its findings in the Ehrlich case and the Tibi case without examining whether the new evidence added to the material that was examined and remained in “doubt”?

            The actions of those has since been compounded by the criminal-security related activity of MK Basel Ghattas, a member of the party who was convicted in 2017 of smuggling cellphones and other items into a prison in which security prisoners were held, as well as the conviction of another MK who was a member of the party, Said Naffaa, for the offense of contact with a foreign agent in 2014, after meeting with the deputy secretary general of the Popular Front (see the denial of his appeal in CrimA 6833/14 Naffaa v. State of Israel [34]), which was not considered in the past in the matter of the entire party.

37.       Added to all of that was the connection affirmed by Balad to its erstwhile leader Azmi Bishara in the course of the annual convention of the Ra’am-Balad party in Nazereth, when it deemed it appropriate to send him a “blessing”. And note that it was made clear to the Elections Committee that this matter was not denied (pp. 29-32 of the transcript of the Elections Committee hearing of March 6, 2019). By that, the present Balad list also declared that it is the successor of the person who led it in the past. It should be emphasized that we are not concerned only with a relationship with Bishara that justifies disqualifying the list (compare: the Balad case, para. 20), and I am not unaware that of the list’s argument that it cannot be held responsible for the actions of MK Naffaa, who has not been a member of the Balad party since 2010, or the actions of Zoabi, who is in an “unrealistic” place on the list. We are concerned with an aggregation of additional, compounded evidence over the course of years that indicates a significant, persuasive, and unambiguous tapestry in regard to meeting the causes of disqualification. An additional connection to Bishara was also presented in the article in the Ha’aretz newspaper of Aug. 18, 2014, according to which then members of the list – Jamal Zahalka, Hanin Zoabi, and Basel Ghattas – met with Bishara in Qatar, which was not denied by Shehadeh (pare. 8 of Shehadeh’s affidavit to the Elections Committee). To all of this is added the current conduct of the members of the list in the form of giving unambiguous, blunt support for terrorist actors who were convicted and incarcerated, whom the current head of the list, MK Shehadeh, refers to as “political prisoners” (article in the Makor Rishon newspaper of Jan. 13, 2019). This is compounded by unambiguous statements in a recorded interview (on Galei Yisrael radio) in the course of which Shehadeh stated in his own words that “every struggle against the occupation is legitimate” and that “we support every popular struggle”.

            Thus, the entirety of the clear, unambiguous evidence – together with the most significant piece of evidence concerning the submission of the bill – shows that the dominant characteristics at the center of the list’s parliamentary and extra-parliamentary action are directed at infringing protected values. The list vigorously acts to realize its objectives through actions and verbal statements.

38.       Under these circumstances, the list’s argument that part of the evidence concerns persons who are no longer candidates of the Ra’am-Balad list for the elections to the 21st Knesset can be of no assistance. The candidates of the 21st Knesset sought, of their own initiative, to join a list that has a “rich” past as detailed above. We are concerned with people who seek to join an existing list based upon the “reputation” that it has acquired, the ideology that is its banner, its purposes and actions that were expressed on various public platforms, and of course, its supporters. The candidates’ distancing themselves from the action of that list – at least in regard to the matter of the bill that was submitted during the term of the 20th Knesset – cannot be accepted. Beyond the fact that evidence was presented that indicates a real connection to its erstwhile leader Bishara, we cannot countenance the argument that the current members of Balad do not stand behind Balad’s platform that Balad itself declared in the 20th Knesset was consistent with what was stated in the bill that was submitted. The claim that we are concerned with “a new generation” cannot be accepted when it concerns the disqualification of a list regarding which clear, unambiguous evidence was presented regarding the meeting of a cause for disqualification.

39.       According to the position of the Attorney General as expressed before us (in sec. 44 of his written position as well as in the oral arguments – despite the fact that he said absolutely nothing on this matter in the written position presented to the Elections Committee), there is nothing in the bill that would lead to the disqualification of the entire list because we are concerned with a joint list of Ra’am-Balad and not of Balad alone. In my opinion, the Ra’am-Balad list cannot be approved for this reason alone. It is difficult to accept the argument that the existence of a cause for disqualification can be “healed” by joining one list to another in a joint list. In view of the purposes of sec. 7A of the Basic Law, the combining of lists cannot confer “immunity” or a defense to a party that has deviated from the path. This, while undermining the fundamental principles defined in the framework of the Basic Law, is not repaired by adding a party. The Sages taught us the principle: “Woe to the wicked person and woe to his neighbor,” and “Blessed is the righteous person and blessed are his neighbors,” which is derived from the arrangement of the Israelite encampment in the desert. Thus, the tribe of Reuben, which encamped beside the members of Kehat, was punished with them in the dispute with Korach and his followers, while the tribes of Judah, Issachar, and Zebulon, which encamped beside Moses, Aaron and his sons, became great Torah scholars (Numbers 3:29 and Rashi ad. loc.). If that is so for the arrangement of an encampment and the placement of neighbors, all the more so when we are concerned with a party joining with another. Joining together is premised upon a shared ideological, political, and conceptual platform. As the prophet Amos said: “Can two walk together, unless they are agreed?” (Amos 3:3). We cannot accept the argument that if there is a cause for the disqualification of the Balad party, the very joining of Ra’am suffices to remedy it. The joining of the Balad party with the Ra’am party does not purify it, but rather it contaminates the Ra’am party that tied its fate with it in a joint list. The “pure” does not purify the “impure”, but rather the “impure” corrupts the “pure”. It would be better were parties to act cautiously when choosing to join parties whose extremist course is on the boundary (and certainly when it crosses the boundary) defined in the Basic Law.

            To summarize, in my opinion, both in the matter of Cassif and in the matter of the Ra’am-Balad list, “all else has failed” even according to the strict criterion of my colleague Justice Sohlberg.

40.       In conclusion, my colleagues’ interpretation in regard to the disqualification of a single candidate and in regard to the disqualification of a list on the cause of support for armed struggle against the State of Israel and the cause of denying the existence of the State of Israel as a Jewish state render the words of the legislature merely theoretical. The Talmud (BT Sanhedrin 71a) addresses the elements of the offense of an individual – the stubborn and rebellious son, and of a group – the idolatrous city, which have committed certain offenses. However, the Tannaim interpreted the elements of the offenses so rigidly that that the Talmud concludes: “There never was and never will be a stubborn and rebellious son. And why was it written? So that you may expound upon it an receive reward”, and: “There never has been an idolatrous city and there never will be one. And why was it written? So that you may expound and receive reward” (a similar expression also appears in regard to Job, of whom it was said: “Job never existed and was never created, but was a parable” (BT Bava Batra 15a). However, alongside this view we find the view of Rabbi Yochanan, who was of the opinion that these were not merely theoretical matters, and who states in regard to the stubborn and rebellious son, “I saw him”, and in regard to the idolatrous city, “I saw it”. We are concerned with practical matters that were and will be in the future. By analogy, the above is applicable to the matters before us, as well.

            And so I say loudly and clearly: “I saw him,” “I saw it,” and we cannot turn our eyes away from seeing.

 

Justice G. Karra:

            I concur in the opinion of President E. Hayut and with the opinions of my colleagues U. Vogelman, I. Amit and E. Baron on the matter of the inapplicability of the probability test to the cause of disqualification for incitement to racism under sec, 7A(a)(2). I would add that the accumulated critical mass of statements and actions detailed at length in the President’s opinion thoroughly ground the conclusion that incitement to racism is a dominant, firmly rooted, and central purpose of Ben Ari’s doctrine. The escalation of racist statements over the last years leaves no possibility for accepting his artificial explanations, not even to the extent of raising doubt as to the intention and purpose of the statements.

            From among Ben Ari’s racist statements and actions, I would like to spotlight a dark, severe act mentioned in para. 44 of the President’s opinion, that is lost in the large catalogue of his inciteful publications. I refer to the act of tearing up the New Testament and throwing it into the waste basket when Ben Ari was serving as a member of the Knesset in the years 2009 to 2013. It is an act that has nothing to do with incitement against Arabs, but it serves to show us that Ben Ari’s racist worldview, which he has espoused over the course of years, is much broader and deeper than incitement against Arabs, whom he sees as enemies. It would appear that this racism is deeply rooted in hatred of the “other” and the different, per se.

            Approving the candidacy of a person who incites to racism and hatred of the other would taint Israeli democracy, and therefore, a normative statement is required saying that such an inciter must be relegated from the Israeli Knesset.

 

Justice N. Hendel:

  1. I concur in the clear, comprehensive opinion of my colleague President E. Hayut. I would briefly sharpen what I see as the main points in regard to each of the actors – candidates and lists – examined in the present proceedings, regarding which there are disagreements among the members of this panel. I will also present my position on a number of general issues regarding which questions or doubts were raised – the probability test, the consequences of two parties running jointly in regard to the existence of a cause for the disqualification of one of them, and the interpretation of the cause “denial of the existence of the State of Israel as a Jewish and Democratic state”.

The relationship between law and elections can be likened to two pillars. One pillar says: “This is democracy’s holiday. An equal vote for every citizen. The people must have its say. The Court does not – and must not – take a stand as to the desired results”. The other pillar says: “Elections without law may distort democracy. Not a day of celebration but of mourning. Bribery, bullying, or a regime takeover of the elections. The answer is the open eyes of the law as written, expressed, and intended. There must be rules even for the smallest details: the timeframe must be strictly observed; the ballot box must be accessible; who can vote and who can be elected. Maintaining the laws is also vital to democracy”. While the first pillar maintains a distance between the law and the elections, the second requires involvement and supervision. Is there a contradiction between the two? I believe that the answer is in the negative, and it is unsurprising. The two pillars sing the praises of democracy together. In other words: there is no contradiction between democracy and the Court’s supervision over the rules. On the contrary, the Court acts to advance democratic principles by virtue of the authority conferred upon it by the legislature.

            Democratic elections are not self-evident. History gives context. In the past, and for a very long period, change of regime was achieved by military coup or the death of the autocratic ruler. Democracy changed the rules. Not power but election. Decisions are made not by the powerful but rather every citizen has equal power. That is the aspiration, and it must strictly be put into practice. It is not a simple task. After all, the voice of the single voter is not, of itself, strong in comparison to the regime. Democracy strives to preserve its character and not lose it in the course of elections. This gives rise to the role of the Court and the proximity of the pillars.

  1. Israeli law establishes when a candidate or a list should be prevented from participating in the elections due to their objectives, actions, and expressions. Section 7 of Basic Law: The Knesset presents the substantive test and the procedures for preventing a list or candidate from participating in elections for the Knesset. This section, and section 63A of the Knesset Elections Law [Consolidated Version], 5729-1969, establish the procedures for this. The substance is defined by three causes for disqualification:

 

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

The procedures are that when the Central Elections Committee for the Knesset Elections prevents the participation of a candidate, the approval of a nine-judge panel of the Supreme Court is required. It is not an appeal but an approval proceeding. The law chose to introduce the Court into the proceedings. It is not post facto judicial review but an ex ante decision. For the prevention of the participation of a list or the approval of a candidate of a list – there is an appeals process.

We addressed the tension between the two pillars presented. Each holds great power in our legal system, and thus the sensitivity required in the course of moving between them in practice and in real time. The path chosen by this Court is one of caution and self-restraint before it prevents the participation of a candidate or a list. Doubt acts in favor of the candidate. This is the consistent approach of the case law in election matters, as explained by my colleague the President. It is interesting to turn to another area of law in which doubts wields great power. In criminal law, a person can be convicted if the charge is proved beyond reasonable doubt. The reason for this is the recognition of the regime’s power to taint and punish the individual. As opposed to this, in Knesset elections, the power of doubt lay in a different consideration – the role of the voter in choosing the candidate and the list it prefers. This Court does not eagerly intervene in election matters. On the other hand, the law requires it to do so in the appropriate circumstances. Just as the will of the electorate must be honored, so too the will of the legislature in such matters. The compromise – or more precisely, the proper balance – is to employ the law only to prevent candidacy in exceptional cases in which, for example, the doubt is not of substance and is not rooted in reality. This rule is intended to permit the voter to express its position on the matter within the four cubits of the ballot box. As opposed to criminal law, in which the court establishes facts in regard to the defendant’s acts and intentions – in the present matter, we look not only backward but forward as well: is the candidate or the list, at the time of the elections, expected to act contrary to the causes enumerated in the law if elected – but in the present and not necessarily in the past. We are thus concerned with a certain evaluation in regard to the future.

However, in the exceptional case in which the candidacy of a candidate or a list meets the following criteria: the cause is a dominant characteristic of the list or the candidate; there is clear, unambiguous evidence of the cause; there is active conduct, including expression in the case of a candidate, for realizing the wrongful objectives; there is a critical mass of highly credible evidence (see the detailed description in para. 16 of the opinion of my colleague the President). Only if these conditions are met is there the necessary certainty to justify the result of disqualification. In the background stands the right to vote and to be elected. That underlies the democratic foundation of elections. And note that the right to be elected has direct consequences for the right to vote.

Another aspect of the matter is remorse or a candidate’s recanting an objective or activity related to one of the constitutional causes. The reason is self-evident. The decision is not personal or punitive but rather institutional and preventative. In other words, its purpose is to prevent an inappropriate actor from becoming a member of the next Knesset. Of course, we are not concerned merely with a declarative test. There must be an examination of whether there are grounds to conclude that the declaration is sincere. Or more precisely – that the declaration is not sincere. Of course, there is a possibility that a candidate may not live up to his declarations. This is not a danger that would justify expanding the list of disqualified actors. If a candidate or list does not live up to its expectations, there are “sanctions” and other means for contending with the matter, whether in the course of the Knesset’s term or in the elections for the next Knesset.

3.         Two points to conclude the general sections. The first concerns the dissenting opinions of my colleagues. I have read the opinions of my colleagues Justice N. Sohlberg and Justice D. Mintz. My colleague Justice Sohlberg is of the opinion that no one should be prevented from participating in the elections for the 21st Knesst, while my colleague Justice Mintz is of the opinion that along with Michael Ben Ari, Ofer Cassif and the Ra’am-Balad list should be prevented from participating in the elections for the Knesset. In my opinion, and pursuant to the above, Justice Sohlberg’s approach might lead to the non-disqualification even of candidates who clearly meet the causes for disqualification. This, while making even the strict case-law tests weighed prior to preventing the participation of a candidate or list in the elections more strict. As for the approach of my colleague Justice Mintz, in my view, his approach might lead to over-disqualification of candidates and lists from both sides. It would appear to me that the path taken by the case law in the past and in the present embraces both of the pillars presented above. Disqualification is imposed cautiously and only exceptionally.

            The second point is that of the symmetry test. My colleague Justice Sohlberg presented a statement by MK Michael Eitan in which he asks: “Where is the symmetry?” I agree with this question and would only like to sharpen the point. Symmetry does not have to be expressed in the final result, but rather in the application of equal criteria. Aspiring to symmetry in order to balance the results is a quasi-political consideration that the Court cannot adopt. I will allow myself to say that reading the opinions of my colleagues – of the majority and the minority – shows that the conclusions were based upon a legal approach and the examination of the evidence, and not upon any desire to maintain equally balanced results.

            Armed with these tools, I will conduct an individual examination of the relevant actors – Michael Ben Ari, Ofer Cassif, and the Ra’am-Balad list.

4.         Michael Ben Ari: The relevant cause in the matter of Ben Ari is “incitement to racism”. We are concerned with some forty different statements, most of which were uploaded to the Facebook page of “Otzma Yehudit with Michael Ben Ari”, such that the matters cannot be denied. Indeed, Ben Ari does not deny them. Most of the material dates from the year preceding the elections. My colleague the President presented the relevant statements (paras. 38-41 of fer opinion). It makes for difficult reading. What was presented suffices, and there is no need to present it again, Comparing the statements with the language of the law raises the question of what is the test for “incitement to racism”?

            I will begin with the term “incitement”. Not racism but incitement to racism. The hand or mouth of one and the hearing ear of the other. In other words, we are not concerned with personal views that the candidate keeps to himself. The opinions must be expressed in order to incite to racism. In addition, my colleague Justice M. Mazuz referred to the probability test. In his opinion, that test should not be applied to the causes under sec. 7A of Basic Law: The Knesset. I agree with his conclusion and reasoning. The language does not support the application of such a test, and such is also the purposive interpretation. Such a test would be too speculative and very difficult to apply at the time of the elections. Additionally, the basis of the causes for disqualification is not necessarily the prevention of a real, concrete threat to one of the protected values, but rather clearly expresses not granting legitimacy to lists or candidates who adopt the approaches set out in the causes. In summary, I accept his conclusion that “we are concerned with causes of ‘conduct’ not ‘results’” (para. 2 of his opinion).

            Now to the question of what constitutes “racism”. My colleague the President addressed, inter alia, the aspects of hatred, hostility, persecution, degradation, and humiliation (paras. 25-32 of her opinion). In regard to Ben Ari’s candidacy, I will say: there is no need to establish the minimal threshold for disqualifying a candidate on the basis on incitement to racism. It suffices to find that in this case, the candidate exceeded the threshold by a wide margin. His statements seek to influence conduct. And note that the lack of a need to prove the elements of the probability test does not contradict the fact that the aspiration to influence conduct in practice reinforces the ground for disqualification. In his statements, Ben Ari espouses the denial of civil rights to the Arab public. So in regard to participating in public tenders and so in regard to their ability to live in cities. He supports their collective deportation in certain circumstances, and employs violent imagery in regard to that community, including shooting. The evidence is very substantial, unambiguous, and dominant in his doctrine.

            In his affidavit to the Elections Committee, Ben Ari argues that he is not a racist, in that he accepts that every person – including the Arabs – are created in God’s image. Only then does Ben Ari proceed to the loyalty test. He is not against Arabs because of how they were born, but because they failed the loyalty test. Moreover, the overwhelming majority of Arabs are not loyal. That “overwhelming majority” was defined in various statements: from 99% to a few who can be counted on the fingers, and Ben Ari never met a loyal Arab. Thus, they have all become enemies. This is the fallacy at the base of incitement to racism. As President Shamgar held, racism is not just a matter that derives from the biology of the other (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11th Knesset [5], 191-192). Racist views can also be examined in accordance with theories, conclusions, and factors that arose after a person’s birth and not upon the DNA that characterizes a group of the population. Not just genetics but epigenetics. Ben Ari did not explain the meaning of the “loyalty test” – what are the criteria of this test, when does one fail it, and how is it that with the exceptions of a very small number of individuals, all Arabs belong to the disloyal group. We are concerned with very severe matters that are not based upon facts but upon a circular conclusion. The results are harsh. An Arab is presumed to be an enemy who must be dealt with. This, by means of denial of rights, deportation, or the possibility of violent treatment. For example, it was stated that anyone who dares to speak against a Jew doesn’t live. He doesn’t live, but rather “a firing squad kills him, he is done away with”; that the “murderers” should not be employed, also in reference to the Arab residents of Israeli cities; that affirmative action should be rescinded in view of the “treasonous” and “murderous” character of Arabs; that Arabs are a “murderous people, a murderous nation”; and that the village from which a terrorist went to an “airport” should be uprooted and its residents “flown” to other countries.

5.         I will clarify the matter from another perspective. One may ask why these particular causes established in the law were chosen. The cause of support for armed struggle against the state is clear and requires no explanation. The cause of denial of the State of Israel as a Jewish and democratic State was intended to defend the existing foundations of the state. As for incitement to racism, we are concerned with a desire to deny the legitimacy of a group. In a varied, multi-group society like that of the State of Israel, this harms the nature of the society. This is striking when we are concerned with some twenty percent of the population. It saddens me to say that reading Ben Ari’s positions – and the reader can read paras. 38-41 of the opinion of my colleague the President – leads not only to racism in the form of humiliation and hatred, but also to severe acts that might undermine social order or create discriminatory law in regard to the foundations of civil rights, including the right to remain a citizen of the state. This is not due to the actions of the group, not due to criminal offenses perpetrated or plans to do harm, but because they do not meet the conception of a proper minority as Ben Ari understands it. By that, I am not finding that he has committed a crime, but there are special requirements in regard to lists and candidates for the Knesset. Particularly in a system in which a representative often represents a specific group, we must make certain that even if he does not fight for the rights of the group, he cannot fundamentally deny the legitimacy of the other group and its right to elementary rights. And all the more so, harm and violence lacks any legitimacy.

6.         The conclusion from all of the above is that this is an unambiguously extreme case. And note well, Ben Ari did not express remorse, but rather embraced his position while explaining that he is not a racist and does not reject Arabs on the basis of their birth. To clarify the picture, let us compare him to Advocate Itamar Ben Gvir and to former candidate Baruch Marzel. It can be assumed that the three share a similar ideology, in that they ran together on the same list. However, this Court refrained from disqualifying Marzel and Ben Gvir. The decision not to disqualify Ben Gvir in these proceedings was unanimous. What difference is there between him and Ben Ari, who was disqualified by an eight-judge majority? It would appear that the tests of the strength of the evidence, its extent, quality, and unambiguity led to that result. But we would note one additional criterion: expressing remorse. Both Marzel and Ben Gvir informed the Court that they intended to act in accordance with the requirements of the law, including the causes for disqualification that it establishes. Even if they behaved differently in the past, they declared that that is how they would conduct themselves. They understood and internalized the qualifying conditions for Knesset candidacy. Ben Ari was not a partner to that choice. He continues to support the views that he expressed. We are not concerned with some technical defect or lack of comprehension. Just as we must respect the manner in which Ben Gvir and Marzel presented their arguments at the moment of truth, so we must respect Ben Ari’s position that justifies his disqualification. My colleagues spoke of how, due to its history, the Jewish people in particular must be sensitive to statements like those expressed by Ben Ari. In my view, we should add that it is not just the history of the Jewish people, but also its faith.  But truth be told, there is no need for that. In these circumstances, there is not even a need to demonstrate the matter by a thought experiment in which Ben Ari would express his views in another country against Jews.

7.         Ofer Cassif: The disqualification request points to two causes that can bar his participation in the Knesset elections. The first is “negation of the existence of the State of Israel as a Jewish and democratic state” and the second is “support for armed struggle by a hostile state or a terrorist organization against the State of Israel”. The evidence presented against him relies upon four publications, the central of which is an interview he gave to the Ha’aretz newspaper in February 2019. It would appear that my colleague Justice Mintz addressed both causes together, but there is a difference in the scope of the evidence and in Cassif’s explanations in regard to each cause, which requires that they be addressed separately. My colleague presented Cassif’s case as so clear as to leave no doubt, and according to his approach, there is no possibility of arriving at a different result.

            Below, I will sketch the general outline of why I hold a different view. The question in regard to Cassif, as for every candidate, is whether there is justification for preventing him from being elected as a member of Knesset in view of the causes established in the Basic Law. As I explained above, the matters are examined in a particular period of time, with a view to the future, and in regard to the candidates functioning in the legislature if he be elected. Past statements and actions may serve as the evidentiary foundation in regard to a position in the present and in the future. The purpose is not to punish improper actions and statements, but to ascertain whether the candidate constitutes an exception that justifies barring his participation in the elections. Cassif said things in the past, although not with great frequency and consistency, that would require him to explain why he should not be prevented from participating in the elections. Cassif’s answer to this is clear, consistent, and divided into three parts: one, in regard to the possibility that he supports armed struggle by a terrorist organization against the State of Israel, is that he does not support violence, not in the past and certainly not at present. I believe that an examination of the matter, as I will explain, supports that conclusion. Even if Cassif spoke harshly, there is a lack of a foundation proving that he supports violence – certainly the foundation needed to prove that he supports armed struggle by a terrorist organization against the State of Israel.

            The second part of his answer concerns the possibility of negating the State of Israel as a Jewish and democratic state. In this regard, he does not deny that he has made statements in the past against various symbols of the state and against the Law of Return, but he declared that he accepts the platform of his list – Hadash-Ta’al – and does not, in that or any other frameworks, act or call for the annulment of the symbols or the Law of Return. He accepts the parliamentary rules. In other words, not only is this not a case of a dominant purpose, but rather there is no such purpose at all. As I explained above, the Court has consistently granted weight to a change of position and a declaration in regard to an absence of intent to act or express oneself contrary to the causes enumerated in Basic Law: The Knesset. As noted, this consideration, applied mutatis mutandis to other causes, is what allowed the candidacy of Baruch Marzel in the past, as well as that of Itamar Ben Gvir at present. It his unwillingness to follow that path that stands in Ben Ari’s way.

            The third part concerns various statements by Cassif that compare the State of Israel and the members of its government to Nazi Germany. My colleague Justice Mintz gave weight to those statements. We are concerned with shameful statements that do no honor to one who makes them, and certainly not to one who seeks election a member of Knesset. It were better had they never been said, and one hopes that if Cassif is elected to the next Knesset, he will refrain from acting in this manner. However, as my colleague the President noted in her opinion – and this is the third part of Cassif’s response – those statements do not fall within the scope of any of the causes enumerated in sec. 7A, and to my understanding, the Court cannot take them into account in examining the disqualification of a candidate. In this regard, I would note that the opinion of my colleague Justice Mintz also referred to Cassif’s statement in his affidavit (para. 13) that he would “not necessarily use those expressions if elected to the Knesset” (emphasis added). According to his approach, the absence of an undertaking by Cassif in regard to his future conduct does not work in his favor. However, and see paras. 12 and 13 of the affidavit, it appears that this statement referred to the shameful statements mentioned above, and not to statements related to the causes enumerated in the law, such that I do not think that this can be held against him in this proceeding.

            In view of the severity of the cause of supporting armed struggle by a terrorist organization against the State of Israel, it would be proper to present Cassif’s own words as stated in his affidavit to the Elections Committee. He affied that “I have never called for violence, and I am opposed to violence as such against any person”. As my colleague the President noted, Cassif explained to the Elections Committee that “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence […]” and stated further on that “I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all”. In regard to the definition of the term “terror” as opposed to “guerilla warfare” in all that concerns harm to soldiers, Cassif’s attorney emphasized in the hearing before us that the statements were made in the course of an academic debate on the subject and that one should not infer that he expressed support for harming soldiers from the presentation of his position in the matter:

He said that he has a dispute with the term “terror” even in the UN there is a dispute about this word. He wrote this and teaches his students. The dispute about the Prevention of Terror Ordinance then was a debate. Therefore, what he says about this matter of who is or isn’t a terrorist from an intellectual and academic perspective is debated […] these terms that he employs are not foreign to the Supreme Court and not to the international humanitarian court. Not one word here is a call [to terror] (p. 9 of the transcript).

            Even if one does not agree with the definitions adopted by Cassif, and even if they cause indignation, in the context presented to us they cannot be taken to imply, of themselves and certainly not given the entire collection of statements and explanations, support for armed struggle by a terrorist organization against the State of Israel. It is sad that his words show, in my opinion, a certain sense of contempt for the lives of IDF soldiers and complacency in regard to many citizens who have lost what was most dear to them in the name of defending the homeland. In such matters, a member of Knesset and a candidate for election as a member of Knesset is expected to act with sensitivity. But there is a gap between such a failing and the existence of a cause to prevent participation in the elections.

            In summation, I would say as follows. In my opinion, there is no basis for attributing to Cassif statements that support armed struggle by a terrorist organization against the State of Israel or the negation of the existence of the State of Israel as a Jewish and democratic state. As noted above, there are four conditions that must be met in order to bar a candidate from participating in the Knesset elections: the cause for disqualification constitutes a dominant feature; the existence of clear, unambiguous evidence of the existence of the cause; activity, including expression, for the realization of the wrongful purposes; a critical mass of highly credible evidence. In my opinion, there is no basis for attributing to Cassif expressions of support for armed struggle by a terrorist organization against the State of Israel. He made it clear that he always was and always will be against violence. As for his positions on the symbols of the state and the Law of Return, he declared that he abides his party’s platform. In regard to both causes, the evidentiary foundation is sparse, certainly not unambiguous, and lacks the requirement of dominance or activity for the realization of the purpose. In other words, both independently and cumulatively, the evidentiary foundation against him does not meet the four tests.

8.         Ra’am-Balad: The proceeding in the matter of the Ra’am-Balad list focused upon the Balad party. It is argued that the central piece of evidence for disqualifying the list in these elections is the Basic Law: A State of all its Citizens Bill that Balad sought to propose to the 20th Knesset. The bill was submitted to the Knesset presidium, but that body did not approve its presentation before the Knesset.

            The bill was of a general character. For example: “The state is a state of all its citizens, in which the regime is democratic; the state’s regime is based upon the values of the dignity of the person, his liberty and his being an equal among equals”. There is also reference to the language, the symbols and the anthem, which will be in the same spirit. It is argued that the positive implies the negative, that is, that the practical significance of this bill is the revocation of the Law of Return and changing the symbols of the state and its anthem such that they would not express its being Jewish but only democratic. Taking this step carries some weight. It is more forceful than a newspaper interview, for example. It is parliamentary activity that can bear fruit. The list’s attorney argued that the bill was a sort of “gimmick” in response to Basic Law: Israel – The Nation State of the Jewish People. This argument, in itself, is insufficient. The bill refers to the negation of the State of Israel as a Jewish (and democratic) state, and even if some party or other is frustrated as a result of the activity of the government and the Knesset, it is not exempt from the requirements of the Basic Law. However, the submission of the bill must be examined not just on the legal level but on the factual level. To be more precise, the factual level constitutes a central part of the legal examination. Thus, the party’s conduct in regard to the causes under the law must be examined in accordance with the strict rules. From that perspective, the bill, by itself, does not cross the necessary threshold. First, as already stated, one of the conditions is that of dominance in the purposes and active conduct. It was not argued that the bill also appears in the party’s platform. Second, the bill is signed by the Knesset members who served at the time, some of whom are no longer candidates in the current list, and others are place only symbolically. Thus, for example, MK Hanin Zoabi was placed in the 118th spot on the list. In regard to the candidates who appeared before us and who are placed at the top of the list, it turns out that they do not support that position. Their attorney even referred to the bill as a kind of mistake. And again, the matter must be examined according to the relevant tests. It would not appear that the desire to annul the anthem, the law and the symbols is dominant, or that they are actively working in such a manner, in particular in regard to the figures who currently represent the list. On the contrary, those positions are not part of the party’s planned parliamentary activity. Not just remorse, but a lack of devotion to the purpose, and conduct at a very specific time. Were the list continuing in that conduct – since the Law of Return remains in force – the situation might be different. But that is not the situation before us.

            From reading the opinion of my colleague Justice Mintz, it appears that he does not agree with the reasoning of the majority. He expanded upon the subject of the party’s conduct that was addressed in the case law in the past, in regard to previous Knesset elections. Of course, one can be of this or that opinion in regard to decisions rendered in regard to previous Knesset elections, but it does not appear that at present, significant weight should be attributed to conduct that this Court already decided was insufficient to prevent the party’s participation in the elections. Thus, the focus is upon the new material, and that is what I addressed.

            My colleague Justice Mazuz is of the opinion that the term “Jewish state” in the context of Basic Law: The Knesset should be understood as referring to the identity of the state in the national sense. In other words, it does not necessarily refer to a change of the internal content, like the state’s symbols. In my view, it would be incorrect to construe the term “Jewish state” as a test of the right of the Jewish people solely to national existence for three reasons. First, the term “Jewish” is not merely a geographical matter, but an historical one as well. The state’s symbols carry weight in the basic definition of the state. So it is in regard to other states as well. Second, the case law has also adopted this view in the past (see, e.g., EDA 50/03 Central Elections Committee v. Tibi [35], 21-22, according to which “the ‘nuclear’ characteristics that shape the minimal definition of the state being a Jewish state…the right of every Jew to immigrate to the State of Israel in which Jews will be the majority; Hebrew is the primary official language of the state; Jewish heritage is a central component of its religious and cultural heritage”). Third, it would appear that practical experience shows that the objections in debates upon negation of the Jewish state focused upon the return to Zion, and not upon questions of general, historical, and religious symbols. Thus, the practical consequences of this distinction are unclear. The primary practical problem concerns proposals to annul the Law of Return, and not merely the changing of the symbols. In any case, it would seem that a construction that includes “internal” characteristics of the term “Jewish” would be more precise, and thus I would take exception to my colleague Justice Mazuz’s distinction. Of course, when I say “internal”, I refer to the most basic matters, but there is no need for elaboration or for a precise delineation.

            A final point. According to the position of the Attorney General, there is significance to the fact that the Ra’am and Balad parties are running together on one list. As opposed to this, I am of the opinion that as a rule, a party that has been tainted by a cause that disqualifies it from participating in the elections cannot cross the hurdle by joining with another party. Such an approach would afford too easy an exemption for a party that should be disqualified simply because it joins with another. In my view, the Attorney General’s approach, according to which weight should be given to the combining of parties – even if this does not grant an “exemption” – is problematic. The reason for this is that it is not clear how to calculate such a factor. There is also the fear that parties might join together so that one will “clean” the other of the cause that has tainted it. It is one thing to recognize remorse, and another to grant a seal of approval due to joining another party. I am of the opinion that if there is a cause for disqualification, then the law requires that the list be barred from running, subject, of course, to restricting disqualification to exceptional cases. Therefore, I did not grant weight to the arguments concerning the relationship between Balad and Ra’am in examining the matters.

9.         The right to vote and the right to be elected are twins, but not identical. In practice, “to vote and be elected” is presented as a single right, when each actually has an independent dimension. This is so, despite the strong connection between them, regarding which it suffices to mention that the right to be elected influences the right to vote. I will demonstrate what the two rights share and what distinguishes them in regard to the issue addressed in these proceedings – the application of sec. 7A of Basic Law: The Knesset.  

            The right to vote focuses upon the identity of the decider and the right to be elected on the question of who is qualified to represent the people, or in our case – who is not qualified to represent them. It would appear that the right to vote places its emphasis upon the individual. The vote of every voter is worth no less that the vote of any other voter, regardless of his status, position, conduct, or statements. Therefore, the criteria for identifying who is entitled to vote are formal. As opposed to this, the question as to who can be elected is not merely formal, but value based. This is how we are to understand the causes that prevent participation in the elections that concern not only support for armed struggle, but also negation of the existence of the State of Israel as a Jewish and democratic state, and incitement to racism. Its purpose is to define the society and its boundaries. The purpose of the right to vote is to protect the individual, whereas the purpose of the right to be elected is to protect the unity of the nation. Both rights are precious.

***

It was therefore decided, on March 17, 2019, by a majority, in accordance with the opinion of President E. Hayut, not to approve the decision of the Central Elections Committee in the matter of the disqualification of the candidacy of Cassif; to grant the appeal in the matter of the Ra’am-Balad list and rule that it is not barred from participating in the elections for the 21st Knesset; to grant the appeal in the matter of Ben Ari and rule that he is barred from participating in these elections. In addition, the Court unanimously decided to deny the appeal in all that regards the Election Committee’s decision not to disqualify the Hadash-Ta’al list, and to deny the appeal in the matter of the non-disqualification of Ben Gvir.

Given this day, 15 Tammuz 5779 (July 18, 2019).

 

 

[1] Mishna Eduyot 5:7 – ed.

[2] Jeremiah 51:5 – ed.

Aviram v. Minister of Justice

Case/docket number: 
HCJ 9029/16
Date Decided: 
Wednesday, February 1, 2017
Decision Type: 
Original
Abstract: 

A petition concerning whether the Knesset is required to ensure that a member of the opposition serves on the Judicial Selection Committee (hereinafter: the Committee) at all times. Background: The two Members of Knesset sitting on the Committee are elected by the Knesset by secret ballot. Since 1990, the Knesset has elected at least one Committee member from the ranks of the opposition. This was also the case in the last elections, with the election of MK Ilatov to the Committee. MK Ilatov was a meber of Yisrael Beitenu, which then sat in the opposition. Shortly thereafter, Yisrael Beitenu joined the coalition. The dispute between the parties concerns a Committee member’s obligation to step down if his party crossed over from the opposition to the coalition, and the requirement to appoint an opposition MK in his stead. The Petitioners predicated their petition, inter alia, on the existence of a constitutional custom.

 

The High Court of Justice (per Justice N. Hendel, Justices I. Amit and U. Vogelman concurring) dismissed the petition on the following grounds:

 

The petition was submitted after considerable delay, which justifies its dismissal for laches. The Petitioners took no action in the six months after Yisrael Beitenu joined the coalition, and failed to account for this adequately. The Committee worked intensively during those months. In particular, proceedings began for reviewing candidates for the Supreme Court. MK Ilatov participated in those proceedings, or at least some of them. The implications of accepting the petition at this time could directly affect those sensitive proceedings.

 

Furthermore, the Petitioners asked the High Court of Justice to rule for the first time on the status of constitutional custom in Israel. They sought the recognition of such a custom in this case, while broadening the definition of custom, through interpretation, to cases where it had never been applied. Inasmuch as the petition should be dismissed for laches, and since this concerns not only the practice but also its interpretation, Justice Hendel was of the opinion that this was not the appropriate case for the first ruling on the issue of the binding validity of constitutional custom. Consequently, there were no grounds for granting the petition in its current form.

 

At the same time, Justice Hendel was willing to proceed through the analytical process regarding the place of constitutional custom as a binding legal source in the Israeli legal system. The purpose of the discussion was to point out the major issues, without exhausting all the questions to the point of establishing a conclusive position. The reason for this was that failure to address this important issue might send a misleading message even in terms of the lex ferenda, despite the Knesset's conduct in this matter over the last 25 years, and the development of case law and the law on the status of the opposition in the workings of government. In fact, this approach of further analysis without deciding the fundamental issue is in keeping with the case-law tradition, which has established preconditions for the existence of constitutional custom without binding rulings on its force.

 

In this context, mention was made, inter alia, of the three cumulative tests proposed in the case law for determining the existence of a constitutional custom in a concrete case. This was carried out without deciding the question whether this constitutional institution exists in Israel. The first test is whether the custom exists, i.e. whether the existence of an ingrained practice can be ascertained. This is an empirical question. It is an objective test. The second test is whether the existing custom is recognized and internalized as such. Is there a “sense of obligation”? That is, in carrying out the practice, did the parties intend to imbue it with binding significance? This test examines the relevant community's position on the behavior in question. This is a subjective test. The third test has to do with the existence of a logical rationale substantiating the practice. Justice Hendel's position was that this test needs to be honed and given an added, normative dimension. The test is meant to check the compatibility of the rationale underlying the constitutional custom with the principles of the constitutional regime.

 

In the present case, there was no disagreement among the parties on the actual existence of a practice to elect at least one Knesset Member from the opposition parties to the Committee. The overall picture also demonstrated that the practice of electing at least one Knesset Member from the opposition was recognized and internalized. As regards the third test, there is no disputing that electing a representative for the opposition to serve on the Committee is worthy, by virtue of constitutional principles of the system that recognize the principle of proportional representation and the minority's right to participate in decision-making processes, and in light of its particular importance in regard to the Judicial Selection Committee. However, we are dealing with interpretative indications as to the scope and content of the practice, with the Petitioners trying to draw an analogy between appointment from the outset and resignation after the fact. In Justice Hendel's view, all things considered, this case did not warrant an exhaustive debate on this question of a change in a party's affiliation.

 

In any event, the entire panel was of the opinion that the Knesset's customary practice of electing a representative from an opposition party to the Judicial Selection Committee is a worthy one that serves important governance purposes. Without deciding the question whether a constitutional custom exists in general and in the circumstances of the case in particular, the Knesset would do well to regulate the matter in explicit terms.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

HCJ 9029/16

 

 

Petitioners:                1. Yitzhak Aviram, Adv.

                                    2. Shachar Ben Meir, Adv.

                                                v.

Respondents:             1. Minister of Justice

                                    2. The Knesset

                                    3. Judicial Selection Committee

                                    4. Attorney General

                                    5. MK Robert Ilatov

                                    6. MK Isaac Herzog

 

On behalf of the Petitioners: Pro Se, Meir Broch, Adv.

On behalf of Respondents 1, 3-4: Yonatan Berman, Adv.

On behalf of Respondents 2, 5: Gur Bligh, Adv.

On behalf of Respondent 6: Eran Marienberg, Adv., Shimon Baron, Adv.

 

Petition for order nisi and interim order

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

           

           

Israeli Supreme Court cases cited:

[1]       HCJ 3250/13 Hebrew University of Jerusalem v. Minister of Finance, (August 9, 2015)

[2]       HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485 (1996)

[3]       CA 1773/06 Shmuel Elef v. Kibbutz Ayelet HaShahar, (Dec. 19, 2010)

[4]       LCA 5247/15 Theophilos Giannopoulos v. Himnuta Ltd. (Aug. 28, 2016)

[5]       HCJ 5167/00 Weiss v. Prime Minister of the State of Israel, IsrSC 55(2) 455, 468 (2001) [https://versa.cardozo.yu.edu/opinions/weiss-v-prime-minister]

[6]       HCJ 3002/09 Israeli Medical Association v. Prime Minister of Israel, (June 9, 2009)

[7]       HCJFH 219/09 Minister of Justice v. Nir Zohar, IsrSC 64(2) 421 (2010) [https://versa.cardozo.yu.edu/opinions/minister-justice-v-zohar]

[8]       HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014)

[9]       HCJ 9/82 Virshubski v. Minister of Justice, IsrSC 36(1) 645 (1982)

[10]     HCJ 849/00 Shatz v. Minister of Justice, IsrSC 56(5) 571 (2002)

[11]     HCJ 1179/90 Ratz Faction v. Ovadia Eli, IsrSC 44(2) 31 (1990)

[12]     HCJ 5/86 Shas Faction v. Minister of Religion, IsrSC 40(2) 742 (1986)

[13]     HCJ 787/89 Likud Faction v. Haifa City Council, (Nov. 1, 1989)

[14]     HCJ 3250/94 Oren v. Petah Tikva City Council, IsrSC 49(5) 17 (1995)

[15]     CA 2663/99 Shamgar v. Ramat Hasharon Local Council, IsrSC 54(3) 456 (2000)

[16]     HCJ 5743/99 Duek v. Mayor of Kiryat Bialik, IsrSC 54(3) 410 (2000)

[17]     HCJ 1020/99 Duek v. Mayor of Kiryat Bialik, (Feb. 7, 2001)

[18]     AAA 7697/14 “Bar” Faction for Governance Control and Quality v. Kiryat Motzkin City Council, (Feb. 21, 2016)

[19]     AAA 1207/15 Ruchamkin v. Bnei Brak Municipal Council, (Aug. 18, 2016) [https://versa.cardozo.yu.edu/opinions/ruchamkin-v-bnei-brak-municipal-council]

[20]     CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) [https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

 

Canadian Supreme Court cases cited:

[21]     Re: Resolution to Amend the Constitution [1981] 1 S.C.R. 753

 

 

 

JUDGMENT

 

Justice N. Hendel:

Is the Knesset under an obligation to ensure that a member of the opposition serves on the Judicial Selection Committee at all times? This issue raises various questions pertaining to the constitutional regime in Israel and the workings of government. It is a delicate subject. On the one hand, it involves fundamental principles of the Israeli constitutional regime. The Judicial Selection Committee is a rarity in that it brings together representatives of the three branches of government—the legislature, the executive and the judiciary. The product of this encounter influences—and might even shape—the judiciary's character. On the other hand, the election of the Knesset's representatives to the Committee is effected by a secret ballot of the Knesset Members. Looking down from above, the Court is called upon to decide upon the characteristics of a Knesset Member who is supposed to select those who are to occupy the bench. But the petition has been submitted. It raises a legal question that must be settled, and the angel of justice commands “Decide!” The petition thus raises an important, delicate and complicated issue.

A. Facts and Arguments

1.         The Judicial Selection Committee (hereinafter: the Committee) consists of nine members: three Supreme Court justices (including the President), two government ministers (among them the Minister of Justice), two representatives of the Israel Bar Association, and two members of the Knesset (sec. 4(b) of Basic Law: The Judiciary). The Members of Knesset on the Committee are elected by the Knesset by secret ballot (ibid; sec. 16(1) of the Courts Law [Consolidated Version], 5744-1984). For over 25 years, since 1990, the Knesset has elected at least one Committee member from the opposition parties in voting for the Judicial Selection Committee. The same happened during the last election to the Committee, held on July 22, 2015. It was during this vote that Respondent 5, Member of Knesset (MK) Robert Ilatov, was elected as a member of the Committee. MK Robert Ilatov's party, Yisrael Beitenu, sat in the opposition at the time. There was no other Member of Knesset selected to the Committee from an opposition party. Then, on May 25, 2016, the Yisrael Beitenu party joined the coalition. Since then, no Member of Knesset from the opposition sits on the Committee. This, in a nutshell, is the background of the petition.

2.         The Petitioners' main argument is as follows: The practice of electing a Knesset Member on behalf of the opposition to the Judicial Selection Committee, which no one disputes, is a binding constitutional custom. By virtue of this custom, a Committee member whose party crossed over from the opposition to the coalition after that member was elected is obligated to resign, at least where there is no Knesset Member left on the Committee whose party belongs to the opposition. The Knesset is under an obligation to appoint a member of the opposition to the Committee instead of the resigning Committee member. Such is the state of affairs as regards MK Ilatov. The Petitioners have other claims as well. They believe that the desired outcome should be arrived at in view of the existence of a binding, enforceable agreement between the opposition and the coalition, or by virtue of a constitutional obligation that exists even in the absence a custom or an agreement.

            Respondents 1-5 (hereinafter: the Respondents) believe that the petition should be dismissed in limine for laches. On the merits, they dispute the Petitioners' position. They hold that constitutional custom has not as yet been declared a binding normative source in Israel. They added that the specific practice of electing at least one Member of Knesset from the opposition to the Committee fails to meet the conditions for the existence of a constitutional custom. It was emphasized that this practice does not, in any case, include the resignation of an incumbent Committee member. In other words, in any event, the practice only pertains to the election of a member on behalf of the opposition parties at the outset, but not to the resignation of a Committee member whose party moved from the opposition to the coalition. As the Respondents see it, even if the existence of a constitutional custom were to be established, it would have been an invalid custom, given the existence of an explicit, detailed constitutional arrangement. The Respondents also disagree with the claims regarding the existence of an enforceable agreement or independent constitutional obligation under which MK Ilatov must resign. Respondent 6 is the Chairman of the Opposition. He supports the Petitioners' position for the reasons detailed in their petition.

 

B. Discussion

3.         Examining a claim of laches in submitting a petition requires examining both the “subjective” delay, from the petitioner's standpoint, and the “objective” delay, which concerns the consequences of the delay from the authority's standpoint. When weighing these perspectives against each other leads to accepting the claim of laches, one must examine the effect of rejecting the petition on the broad public interest (HCJ 3250/13 Hebrew University of Jerusalem v, Minister of Finance [1], para. 19); that is, whether there is serious violation of the rule of law.

            Subjectively speaking, the Petitioners significantly delayed before taking any kind of action. Yisrael Beitenu joined the coalition in May 2016. For around six months, the Judicial Selection Committee went about its normal business. Only in November 2016 did the Petitioners make a move. They first approached the Minister of Justice, and then filed the present petition. The fact that the Yisrael Beitenu party joined the coalition was universally known, as was MK Ilatov's membership on the Committee. The practice of electing at least one Knesset Member from the opposition to the Committee was also within the realm of public knowledge. Indeed, even before Yisrael Beitenu joined the coalition, MK Issawi Frej brought the matter to the attention of the Speaker of the Knesset. In response, the Knesset Legal Advisor, Adv. Eyal Yinon, responded that there was no legal basis to demand MK Ilatov's removal from his tenure, even if Yisrael Beitenu were to join the coalition. Thus, the matter was already clarified by the Knesset Legal Adviser in May 2016. In this state of affairs, there is no satisfying explanation for the long period of time that the Petitioners sat idly by.

            The subjective delay and the objective delay are always intertwined. A period of six months, in itself, does not automatically mean the rejection of a petition by this Court or its further discussion. The subjective delay is examined vis-à-vis its objective consequences in the period of time that elapsed until the petition was submitted. In our case, the six months since Yisrael Beitenu joined the coalition saw the Judicial Selection Committee work intensely. Tens of judges and registrars were selected for office in the various instances. This represents action on a large scale, which has implications and poses difficulty for accepting the Petitioners' claim that the current composition of the Committee is unconstitutional. Add to this another important detail—the timing of the petition's submission. It is no secret that four new judges are expected to be selected to the Supreme Court this year. This is an exceptional occurrence in its scope. The candidates' names have long been selected and published. The Committee started its proceedings to review the candidates before the petition was submitted. Candidates were interviewed. MK Ilatov participated in said proceedings, or at least some of them. The Petitioners knew all about this, and did nothing. They themselves say, in their petition, that this is one of the key reasons for its submission, and the key argument for granting the interim order requested (but not granted). On reading this, one infers that the petition was also meant to influence the actual identity of the new judges to be selected. The relevance of the matter lies, as mentioned, in the consequences of the delay. The selection process is underway. Steps were taken by the Committee and its members to move the matter forward.

            In the hearing before us, the Petitioners said they believed that the matter was handled by some internal Knesset mechanism. Only when they realized that MK Ilatov continued his tenure as a member on the Committee did they turn to the Minister of Justice and the Court. They also added that, in any case, the severity of the matter warranted its discussion on the merits. As noted, in light of the Committee's activity, including publications in the Official Gazette, the only possible determination to be made is that this is a case of subjective and objective laches. This leaves the issue of public interest and the harm to the rule of law. This issue is more complex than the various types of laches claims. I shall elaborate below, but for the moment, I will suffice in stating that the arguments raised in the petition are not simple from a factual or legal perspective. On the merits, some of the arguments are tenuous, the very least. This consideration carries weight when examining whether the public interest overrides objective and subjective laches (HCJ 7111/95 Center for Local Government v. Knesset [2], 499). I believe that under the present circumstances, as detailed above and as will be explained below, the petition should be dismissed for laches. With that said, and in view of the need to examine the question of public interest due to the importance of the issue itself and in order to prevent ambiguity in that regard, we will now address the substantive disagreement between the Parties.

 

C.        On Constitutional Custom

            4.         As stated, the Petitioners premised their petition on three primary arguments: constitutional custom, obligation by agreement or obligation by law deriving from the principles of the system, or a conflict of interests. I believe that the Petitioners have failed to  demonstrate the validity of two of the arguments. I will not dwell on the analysis. Suffice it to say that the Parties have not presented any agreement between actual parties that imposes specific obligations upon the parties—as opposed to a general, ingrained practice. Neither was any legal source presented that requires accepting the Petitioners' position, assuming even the absence of any custom or agreement. Beside that, but not marginally, it is worth addressing a number of points that come up in the petition with respect to constitutional custom. They are of great importance in terms of governance and administration. The Petitioners' chain of reasoning in this context was forged of several links. Each of them raises a complexity of its own from the factual or doctrinal perspective. My intention is to address important points that were raised, which should not be left hanging unaddressed in legal space. The purpose of the following discussion is to note the highlights, without exhausting all of the questions and establishing a conclusive position.

 

5.         The status of constitutional custom in Israel. In various contexts and circumstances, a “custom” or “practice” may acquire binding legal force that can decide rights and obligations under law (CA 1773/06 Shmuel Elef v. Kibbutz Ayelet HaShahar [3], paras. 46-50; LCA 5247/15 Theophilos Giannopoulos v. Himnuta Ltd. [4], para. 21. For the distinction between “custom” and “practice” and the question of the force of customs in various areas of law—including administrative, constitutional, civil and criminal law—see Gad Tedeschi, Custom in Our Contemporary and Future Law, 5 Mishpatim 9 (1973) (Hebrew)). Sometimes, the law itself establishes the legal force of a practice or custom (see, for example, sec. 15 of the Contracts (General Part) Law, 5733-1973). In fact, among the contexts in which the legislature chose to grant binding force to a custom is a certain aspect of the Knesset's work (sec. 19 of Basic Law: The Knesset, titled “Procedure and Rules”: “The Knesset shall itself prescribe its procedure; insofar as such procedure has not been prescribed by Law, the Knesset shall prescribe it by its Rules; as long as the procedure has not been prescribed as aforesaid, the Knesset shall follow its accepted practice and routine”).           

            The justifications for recognizing the binding legal validity of custom are different and diverse. First and foremost, one can point to the parties' consent to grant a given practice binding legal force. At times, such consent may take the form of a general law; at times, a private law—e.g. a contract; and at times, a custom. Notwithstanding the difference among the cases, the basis for legal obligation remains the same: the parties' consent, although, of course, the levels of obligation span a broad scale, from a very real obligation to a lack thereof. Considerable weight also attaches to considerations of reciprocity and reliance, which sometimes surround the custom.

            Case law and the literature have raised the question of whether binding force can be attributed to constitutional or administrative custom under Israeli Law (see Shimon Shetreet, Custom in Public Law, Klinghoffer Book on Public Law, 375 (Yitzhak Zamir, ed., 1993) (Hebrew) (hereinafter: Shetreet); HCJ 5167/00 Weiss v. Prime Minister [5], 468 , per President A. Barak (hereinafter: the Weiss case)). No hard-and-fast rules have actually been laid down in this matter as yet. This Court has even refrained from doing so, choosing to emphasize that it is willing to assume that a custom exists, and accordingly continue its analysis of the issue before it (ibid.). It would even appear that this Court has expressed some support on a number of occasions in the direction of recognizing constitutional custom, or “constitutional convention” (see, for example, HCJ 3002/09 Israeli Medical Association v. Prime Minister [6], para. 9, per President D. Beinisch, regarding the status of the institution called “Deputy Minister with Ministerial Status”; the opinion of Justice I. Zamir in the Weiss case, page 477, regarding how a “transitional government” functions. As concerns the relationship between “constitutional custom” and “constitutional convention”, see Shetreet, pp. 386-391, which links these two concepts and their legal status in Israel). Thus, for example, Justice A. Rubinstein wrote in HCJFH 219/09 Minister of Justice v. Nir Zohar [7], para. 5 of his opinion (hereinafter: the Zohar case):

 

I am very much in favor of the doctrine of the constitutional convention described by President Beinisch. In my view, over and above the criteria that she mentioned, recognition of the institution of a constitutional convention has educational and moral importance. It radiates stability and continuity in the normative system and makes it possible – even in a state in which the work of establishing a constitution has not been completed and whose constitutional institutions are not fully rooted in a constitution which is written like the rest of its law – to instill a sense of a constitutional tradition that passes from generation to generation. In my view, this is a matter of invaluable importance.

 

The Petitioners' argument in this regard thus carries weight. There are certainly grounds to believe that, under certain circumstances, a constitutional custom of binding legal force will be recognized (see, for example, Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. I, 95-96 (5th edition, 1996) (Hebrew)). I would add that a judge recognizes the advantage of the approach whereby a question left undecided should not be ruled upon if enquiry is not required to decide the case. However, I believe that a healthy constitutional system striving for evolution and clarity can expect that fundamental questions will not remain unanswered for decades (see what I said with regard to the definition of a “fundamental right” in my opinion in HCJ 3752/10 Amnon Rubinstein v. Knesset, [8]).  At any rate, as noted, and as shall be explained, since the petition should be dismissed for laches, and since we are concerned with not just the practice but also its interpretation, I do not believe this to be the case that warrants the first ruling on the issue of the binding validity of constitutional custom.

            And yet, it would be proper to proceed along the stages of analysis. The reason for this is that leaving the important issue undecided might convey a misleading message in regard to the lex ferenda as well, despite the Knesset's conduct in the matter for 25 years, and the evolution of the case law and the law on the opposition’s status in the workings of government. In fact, this approach of further analysis without deciding the fundamental issue is in keeping with the case-law tradition, which establishes preconditions for the existence of a constitutional custom without binding rulings on its validity.

 

6.         The existence of a constitutional custom in our case. Case law has suggested three cumulative tests to determine the existence of a constitutional custom in a concrete case, without, as noted, deciding the question of whether this constitutional institution exists in Israel (the Zohar case, para. 32, per President Beinisch). The Parties’ attorneys addressed the meeting of the first two tests. But in my opinion, a closer look at the case law reveals a third test that should be recognized and developed.

            The first test is whether the custom exists, i.e. whether it is possible to point to the existence of an entrenched practice. This is an empirical question. The second test is whether the existing custom is recognized and internalized as such. Is there a “sense of obligation”? That is, did the parties intend to imbue the practice with binding significance when carrying it out. Thus, for example, as opposed to a practice perceived by the parties as desirable but non-binding, or by analogy to contract law—is it merely a kind of gentlemen's agreement that each party may stray from at will with no legal repercussions? The difference between the first two tests is that the first one involves examining conduct historically. It is an objective test. The second test examines how the relevant community perceives the conduct in question. It is a subjective test. Or if you prefer – a factual element versus a mental element. The third test relates to the existence of a logical rationale establishing the practice. I myself would examine to what extent the custom takes normative precedence in light of constitutional principles. This is a normative test.

            At this stage, let us consider the first two tests. The Parties disagree on both. Further along our discussion, we shall turn the magnifying glass to the third test. Although this test occasioned no debate or disagreement between the Parties, it is of great significance for the debate.

7.         The existence of a custom. Is the election of an opposition member of the Knesset to the Committee an entrenched practice? The Parties are not in disagreement about the existence of an entrenched, consistent practice whereby, in electing the Committee, at least one Knesset Member belonging to an opposition party is chosen. This practice has been maintained continuously, without exception, since 1990. During those years, there have been many elections to the Committee. In all of them, at least one Committee member was chosen from the opposition parties. The dispute between the Parties relates to the duty of a Committee member to resign if his party has moved from the opposition to the coalition. According to the material submitted by the Parties, this kind of situation has never occurred before. The Respondents deduce from this that there is no practice in place, and certainly none that is consistent and entrenched. The Petitioners contest this position. In their view, the practice of electing a Committee member on behalf of the opposition parties also incorporates the resignation of the Committee member who was voted in on the opposition-member “ticket” but whose party crossed over at some point to the ranks of the coalition. A more sophisticated version of the argument is that this obligation arises when there is no Committee member left from the opposition parties, as in the circumstances of our case, and this by virtue of the principle of representation for the opposition on the Committee. Thus, it is the interpretation of the practice that is disputed on this plane.

            The question of how to interpret the practice of electing at least one member from the opposition to the Committee is a good one. On the one hand, the Petitioners have a point. If an individual is voted into a given body by virtue of belonging to one political sector or the other to begin with, his conversion to another political sector upsets the balance meant to be created in the composition of said body. On the other hand, the Respondents' argument also stands on firm ground. There is no denying the difference between elections to the Committee and the resignation of an incumbent member. In HCJ 9/82 Virshubski v. Minister of Justice [9] (hereinafter: the Virshubski case), the Court was asked to rule that the membership of a member of the Judicial Selection Committee expired. The background to this petition was the election of that Committee member, MK Dov Shilansky, by virtue of being a Member of Knesset, and his subsequent appointment as deputy a minister. This is what the Court wrote in its decision:

                        The question before us is not whether the Knesset can elect one of its members who is a deputy minister as a member of the Committee, but whether a Member of Knesset who was duly elected to the Committee is disqualified from continuing to serve as a member of that Committee for the interim period pending the election of two other members to the Committee by the new Knesset following his appointment as a deputy minister during the term of the new Knesset. The two questions are not the same, and even if we were to conclude that a deputy minister should not be elected as the Knesset representative on the Committee to begin with, this still does not require the conclusion that in a case like the one before us, the appointment as a deputy minister ends the tenure on the Committee (ibid., p. 649).

 

Let us recall that we are now dealing with interpretative indications as to the scope and content of the practice of electing a Member of Knesset on behalf of the opposition to the Committee. The existence of a custom, after all, is an empirical question. Hence, the interpretation of the custom also involves an empirical aspect. Under this prism, all there is to conclude from what has been said is that there is no necessity to accept the analogy that the Petitioners wish to draw between appointment from the outset and resignation after the fact. A custom in which one criterion applies to choosing the members while another applies to the resignation of an active member makes sense. However, the flip side of the coin is that this position is not necessarily ruled out. After all, the purpose behind the practice of appointing a member of the opposition is the latter's representation on the Committee. This purpose does not change after the election to the Committee (see the opinion of Justice S. Levin in the Virsbubski case). One way or the other, and on the whole, this is not the place to fully explore this question of a change in party affiliation. The letter of the law likewise highlights the difficulty, as we shall discuss below.

8.         Sense of obligation. The Respondents argue, in the framework of the second test for the existence of a constitutional custom, that the practice of electing a Committee member on behalf of the opposition was, in any event, not accompanied by a sense of obligation. The indications adduced for this include, inter alia, the fact that Committee members are selected by secret ballot; that at least on one occasion, two members from the coalition put in their candidacy for the Committee; that in the past, two members on behalf of the opposition served on the Committee; that there have been various bills proposed in the past to institutionalize the custom through legislation. These never matured into legislation. On the other hand, the Petitioners believe that these data in fact support their position that the custom was attended by a sense of obligation.

            A remarkable and surprising fact is that there is no controversy among the Parties about the existence of a practice to select at least one Knesset Member to the Committee from the opposition parties (a practice called “informal agreement” by the Respondents and “constitutional custom” by the Petitioners). The reason for this is that any Knesset Member can nominate himself for election to the Committee, and the elections are held secretly. To ensure the election of at least one Knesset Member from the opposition under this voting system, a carefully planned political mechanism needs to be created. As an illustration, sec. 6(3a) of the Courts Law prescribes that among the Knesset's representatives on the Committee there shall be at least one female Member of Knesset. Section 62(d)(7)(c) of the Knesset Rules of Procedure establishes a mechanism for achieving this goal: “If a female Knesset Member … was not elected to the Committee… a second vote shall take place immediately. In the second vote, only the two female Knesset Members, who were candidates in the first vote, shall stand for election, and the female Knesset Member who received the largest number of votes shall be considered to be the one elected instead of the male Knesset Member who received the second largest number of votes”. As opposed to this, no such mechanism governing the election of a member of the opposition was laid down. Therefore, upon the institutionalization of the practice for doing so, it would have been necessary to create a sophisticated mechanism—and more importantly to our matter: a deliberate and calculated one—that would ensure the appropriate vote in advance. In some cases, the system to ensure such an election was to nominate only one Knesset Member from the coalition for election. However, this was not always the case. Thus, for example, when electing the representatives of the 18th Knesset to the Committee in 2009, two Knesset Members from the coalition parties at the time were in the race – MK David Rotem and MK Eitan Cabel – and still a representative of the opposition was elected. We therefore learn that despite the difficulty involved, since 1990, the practice has been rigorously maintained. This suggests devotion to observing the practice and a high sense of obligation.

            On the other hand, the Respondents' arguments in this context are not convincing. For example, the fact that in some cases two Knesset Members from the opposition were elected cannot testify to a lack of commitment to elect at least one Committee member from the opposition parties. At best, this fact can tell us that there is no custom whereby at least one of the two Knesset representatives on the Committee should belong to the coalition. A consideration of the whole picture suggests that the practice to elect at least one Member of Knesset from the opposition was met with recognition and internalization. The practice gained true weight. It became a generally recognized given. No one challenged its validity. Let us also recall that even in the circumstances of our case, no one actually challenged the force of this practice. In the present Knesset, MK Ilatov was elected as a Committee member from the opposition benches. Even when his party moved to the coalition, the Knesset Legal Advisor addressed the issue and opined that there was no flaw involved. Without taking a position, this at any rate reinforces the force of the custom, if only at the stage of electing the Committee members, as well as the understanding that it must be honored.

            Furthermore, the practice was observed reciprocally, which is of great significance when examining the sense of obligation. A look at the historical list of Knesset representatives on the Committee from the opposition parties shows that the role was filled by many different parties, alternating among them, in a kind of game of musical chairs. Just as the government changed, so did the identity of the party benefiting from the practice. The reciprocity reinforces the validity of the practice and reveals greater devotion to it. One can sum up and say that the practice of appointing a member on behalf of the opposition parties to the Judicial Selection Committee has been accompanied by a sense of obligation for a long period of time.

9.         The existence of a custom alongside a constitutional arrangement. Before we address the third test for the existence of a constitutional custom, we should consider another reservation of the Respondents, regarding the relationship between custom and law. Let us assume that we have cleared all the obstacles so far. Constitutional custom has been determined to be a legally valid institution in Israel. The existence of a specific custom has also been recognized. However, on a general level, such recognition is no guarantee that the Court will necessarily enforce the continuation of the custom. What does this mean? The Knesset and MK Ilatov argue that, according to case law, wherever a constitutional arrangement is regulated in detail in law, a constitutional custom will not hold. This was established, according to them, in President Barak's ruling in HCJ 849/00 Shatz v. Minister of Justice [10]: “What we are saying here has no bearing on the ‘constitutional conventions’, since they are based upon  an absence of a constitutional arrangement or a lacuna” (ibid., p. 575; and see HCJ 1179/90 Ratz Faction v. Ovadia Eli [11], pp. 35-36). Indeed, we have a constitutional arrangement. Basic Law: The Judiciary, the Courts Law and the Knesset Rules of Procedure establish the make-up of the Committee, including the affiliation of its members to the various governmental authorities or to a professional body. The mechanism for electing the Knesset's representatives on the Committee is laid down. The law or the Rules of Procedure even explicitly address questions of continued tenure following changes, and of failure to meet the election criterion (such as adequate representation for women). In none of these is there a trace of the remedy sought by the Petitioners. At the same time, the possibility of resignation by a Committee member is not explicitly ruled out, be it in general or in the circumstances that are the subject of the Petition. The question is, then, whether a situation like the one before us is addressed in law in the form of a negative arrangement, or whether it is a lacuna that the legislation does not at address.

            It is hard to make a case for this being a negative arrangement. In other words, it is hard to accept the idea that the purpose of the law is to prevent a Committee member from resigning given the existence of a constitutional custom meant to ensure membership on the Committee on behalf of the opposition parties. Indeed, at times the letter of the law is explicit in such a way as to render the interpretative dilemma superfluous. Thus, for example, the law specifically states that when a Knesset has reached the end of its term, the Members of Knesset it elected  to the Committee will continue to serve on the Committee until the new Knesset elects other members to replace them (sec. 6(1) of the Courts Law. Compare to HCJ 5/86 Shas Faction v. Minister of Religion, IsrSC 40(2) 742 (1986), regarding the members of the committee for appointing rabbinical court judges). From the explicit letter of the law, one can also infer in which cases a Committee member ceases to serve on the Committee immediately. This happens, for example, when a minister sitting on the Committee has left office (ibid., page 750; the Virshubski case, p. 649). According to the Respondents, in the present case too, we can learn from various details of the legislative arrangement that a Committee member is under no obligation to resign in circumstances like those before us. This can be understood, for example, from the provision of the Knesset Rules of Procedure that provides: “Each of the Knesset Members, who is not a minister or a deputy minister, is entitled to offer his candidature to an appointments committee” (sec. 62(b)3 of the Rules of Procedure). I have considered this provision, as well as other provisions that the Respondents have pointed to. I believe they were unable to point to an arrangement from which one can conclude, explicitly or implicitly, that the remedy sought by the Petitioners runs counter to, or is ruled out by virtue of the language of the provisions of the Rules of Procedure or the law. The law was not at all intended to regulate the issue of the affiliation of the Knesset Members on the Committee to coalition or opposition parties, either in terms of the election or in terms of their continued tenure. The law does not at all address the possibility of a Committee member resigning of his own initiative, by virtue of a parliamentary agreement, or by a custom. If there is a custom pertaining to these aspects, the existing legislation cannot disqualify it.

            To complete the picture, we would note that it can be argued that the practice is binding in the first stage, when the Committee members are elected. However, once a member from the opposition parties has been elected, the practice does not obligate him to resign, even if his party joined the coalition. Admittedly, the letter of the law does not contradict this possibility, and could even be thought to be compatible with it. However, it must be admitted that it is the interpretation of the practice that poses the hard question. In other words, just as there is no dispute that the practice to initially appoint  at least one Member of Knesset from the ranks of the opposition in the first stage has held true for close to a quarter of a century, it is also true that Parties have also failed to adduce a single example where the transitioning of one Member of Knesset from the opposition to the coalition has led to his resignation from the Committee. It is not clear whether this situation ever presented itself. Indeed, this was another reason why I thought that this was not the right case for ruling whether a binding constitutional custom was possible in the Israeli system. The reason for this is that, even if we were to determine as much, we would face another hurdle in the form of the change in the party’s status during the tenure. One way or the other, this is not a case of a negative arrangement in the law or the Rules of Procedure. The law does not prohibit the resignation of a Knesset Member from the Committee. The true question is not, as noted, the interpretation of a law, but the interpretation of a practice.

            Let us now turn to the third test for the existence of a constitutional custom.

10.       The normative component. Case law has suggested predicating a constitutional custom on another test—the logical rationale underlying the custom (the Zohar case, para. 32, per President Beinisch). In my opinion, the importance of the third test is the insufficiency of exclusively empirical checks, which are the purview of the first two tests. As mentioned, these tests examine whether a practice has become ingrained and understood as having binding validity. The shortcoming in both these tests lies in the content of the practice. Does that carry no weight at all? This is what I believe gave rise to the logical-rationale test. The question to ask is: Is the practice good? However, I believe this test needs to be honed and given an added, normative dimension. That is, despite the language in which the test was worded, in truth it is not just an analytic-logical test. The goal of the test is to check the compatibility of the rationale underlying the constitutional custom with the principles of the constitutional regime. In fact, this is how it was applied in the Zohar case (ibid., paras. 23, 33). The Supreme Court, sitting in an expanded panel, addressed the definition of the President’s amnesty power, the nature of the Minister of Justice's countersignature within this framework, and the degree of judicial review in its regard. This is a weighty issue. In order to decide it, attention must be paid to normative aspects and values. This is what we will do. As President Beinisch said:

                        The third test for the forming of a “constitutional convention” examines the rationale underlying the constitutional convention, should the latter have formed. We addressed this rationale above, and stated that the countersignature expresses the parliamentary responsibility for the amnesty power, and the possibility of subjecting the decision to judicial review. This responsibility, as mentioned, derives from the fundamentals of the Israeli regime, which require a process of checks and balances for the exercise of governmental powers (ibid., para. 33).

 

This position, which requires a normative component in recognizing a constitutional custom rested, inter alia, on a ruling by the Supreme Court of Canada, which reads as follows:

                        The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative (Re: Resolution to Amend the Constitution [21], p. 888).

 

That is, it might have been possible to think of a different position, which does not consider the content of the custom but the facts alone—the first two tests. Despite this, a position was chosen that considers the compatibility of the custom with the system's constitutional principles.

Similar principles can be found in Jewish law. The normative status of custom is recognized (for more on the subject, see: Menachem Elon, Jewish Law: History, Sources, Principles, 726-777 (1992) (Hebrew)). The Sages accorded existing custom binding halakhic weight in cases involving interpretation of the law. Thus, for example, in some cases of contention, they ruled based on the common practice “go forth and see how the public are accustomed to act” (TB Berakhot 45a; Eruvin 14b). Similarly, in cases involving a lacuna in halakha (Jewish law), the Sages ruled based on the following custom: “Any law that is flimsy in court and whose essence you do not know, go forth and see what the public custom and practice are” (TJ Pe'ah, Chap. 7, Halakha 5). In some cases, the Sages believed that a custom’s status could even override law: “And custom cancels halakha” (TB Bava Metzia, Chapter 7, Halakha 1). With that said, the normative power of a custom is contingent on its not being an erroneous custom, and on its conformity with the values of Jewish law. In cases where the Sages thought that the custom deviated from the appropriate law, they abolished it, even when it was deeply entrenched. Thus, for example, Rashba [Rabbi Shlomo ibn Aderet, 1235 – 1310] writes: “If it was customary not to at all enforce damage by gazing [hezek re'iya] into houses and courtyards—this is an erroneous custom, not a custom" (Responsa Rashba, Part B, 268; see also the words of Rabbeinu Tam in the Tosafot commentary to TB Bava Batra 2a, s.v. “Parchment” [gvil]). Evidently, the ways of the world remain the same. The Jewish law system also attaches importance to the existence of custom, to the sense of obligation and to logical and normative content. The similarity in law testifies to the universality and importance of these matters. The law does not cover all possibilities. People behave a certain way, and by their behavior they create a custom.

Furthermore, modern case law has even expressed the position that there is a kind of parallelogram of forces between the normative component of a custom and its factual components. The Canadian ruling cited above rested on such a position:

                        We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it"(W. Ivor Jennings, The Law and the Constitution 136 (5th ed., 1959)).

 

Of course, if a custom is to be validated, it must be rational. This does not, however, contradict the observation that the deeper a practice is implanted in the system’s constitutional principles, the easier it becomes to recognize it as a binding constitutional custom. Needless to say, a court will not readily be party to enforcing a bad custom (cf. an “erroneous” custom in our review of Jewish law above). However, it is also the case that a neutral custom is not the same as a worthy custom. Take, for example, a practice pertaining to the technicalities of the vote for a committee. Section 62(d)(1) of the Knesset Rules of Procedure states that the election of the Knesset Members to the committee shall involve the selection of a “ballot committee” by the Speaker of the Knesset comprising two Knesset Members from the coalition parties and two from the opposition parties. Were it proven that there was an entrenched practice of appointing six Knesset Members to this committee instead of four—three each from the coalition and the opposition—there might not be cause to enforce it if a decision was then made to deviate from it. Ours is a different situation. There is no disputing the merit in our case of selecting a member of the opposition to the Committee. This value-related aspect bears upon the custom’s factual aspect. It reinforces its position. This view emanates from the combination in our case—the role of the Judicial Selection Committee vis-à-vis its composition within the bounds of the constitutional mechanism and of Israel’s governance and administration procedures. To understand the full significance of these two, it helps to elaborate on them and their importance in a democratic society.

 

D. Opposition, Majority Rule and Everything in Between—the Principle of Proportional Representation

11.       Beyond the questions of doctrine pertaining to the interpretation of the law, to the status of custom in general, and in the context of the Judicial Selection Committee in particular, the question before us transcends the concrete case and touches on a broad issue in the theory of state: the principle of proportional representation and the minority’s right to participate in decision-making processes. In view of the importance of the subject—and particularly in regard to the Judicial Selection Committee—I wish to elaborate on it level by level. The principle of “proportional representation” frequently reappears in the rulings of this Court relating to the representation of political parties on the various Knesset committees and local authorities (see HCJ 787/89 Likud Party v. Haifa City Council [13]; HCJ 3250/94 Oren v. Petah Tikva City Council [14]; CA 2663/99 Shamgar v. Ramat Hasharon Local Council [15]; HCJ 5743/99 Duek v. Mayor of Kiryat Bialik [16]; HCJ 1020/99 Duek v. Mayor of Kiryat Bialik [17]; AAA 7697/14 “Bar” Faction for Governance Control and Quality v. Kiryat Motzkin City Council [18]). This principle establishes the need to aspire to have parties—including minority parties—proportionally represented according to size on every committee appointed by the public authority (see, for example, Rule 102(a) of the Knesset Rules of Procedure (May 13, 2016); sec. 150A of the Municipalities Ordinance [New Version]; sec. 19(a1)(1)(c) of the Planning and Building Law, 5725-1965). Given the large number of parties in Israel’s parliamentary system, it is not always possible for all parties to have representation. In such cases, it was determined that opposition parties should be allowed to appoint a representative on their behalf (on the constitutional aspects of the issue, see: Yigal Marzel, The Constitutional Status of the Parliamentary Opposition, 38 Mishpatim 217 (2009) (Hebrew), which notes the recognition—formal as well—of the status of the chairman of the opposition). 

In AAA 1207/15 Ruchamkin v. Bnei Brak Municipal Council [19] (hereinafter: the Ruchamkin case), I dwelt on the minority’s right to representation on the various committees, and on the democratic importance of this right from the perspective of political philosophy and the system of Jewish law. This case centered on the appropriate way to select representation of the minority party on the Municipal Property Tax Discount Committee. It was determined that here, too, adequate representation for the minority party was required. While the legislative and normative framework in the Municipalities Ordinance differs from the one in our case, the rationales put forward in the Ruchamkin case also apply to the various Knesset committees, and all the more so—as shall be explained below—to the Judicial Selection Committee.

The Ruchamkin case emphasized that the full realization of the democratic idea is not just majority rule, and does not suffice with the majority’s recognition of the minority's rights—modern democracy sees value in the participation of the minority in leadership and in the decision-making processes:

                        The right of the minority to participate in the decision-making process – and not just its political right to elect the decision makers – was particularly emphasized by many political philosophers in the second half of the twentieth century. It might be said that this is the third stage in the development of the democratic idea. At the principle’s outset – in the Athenian Greek polis – it meant majority rule (the meaning of the word demos is “the people”, and the original meaning of democracy was “rule of the people”, as opposed to monarchic and oligarchic rule). In the second stage, democracy became the majority’s obligation to recognize the rights of the minority, which, in the third stage, developed into the recognition that even the minority must play an integral role in the decision-making process  (ibid., para. 9).

 

The minority's participation does not detract from the majority's status. The majority's governance is reflected in the fact that, by its very definition as the majority, it has a greater share than the minority. As a result, within the democratic decision-making procedure, which adds up the number of votes, the “fingers” of the majority will prevail. However, involving the minority in the decision-making process reflects an egalitarian, respectful treatment of everyone, and allows mutual discussion and persuasion. These ingredients enrich the discourse, and they are what lends legitimacy to majority decisions, even when they are deeply opposed to the minority position:

… minority participation in the process is a central element of the legitimacy of majority decision-making in the eyes of the minority, which must accept the majority decision even when it considers the decision itself to be wrong. The minority must not feel that it has a lesser status than the majority. According to this view, debate and voting are not merely decision-making rules, but also preserve equality, and are the basis of the legitimacy of the majority’s decision(ibid., para. 9).

 

12.       It should be noted that the broader perspective of comparative law also shows that many countries have arrangements that enshrine the minority’s right to participate in the various committees: England and Australia have, alongside specific arrangements relating to the composition of the committees, a general provision of law stating that their composition must mirror that of the parliament (in England, see: Standing Orders of the House of Commons, art. 86(2); in Australia, see: Standing Orders of the Senate Committees, art. 22A(2a). In Canada, the law prescribes an arrangement that makes it mandatory to appoint, alongside the committee chairperson, an official representative for the opposition and another representative of an opposition party (Standing Orders of the House of Commons, art. 106(2)). Now that we have looked at the legislative arrangements practiced in other legal systems, let us also briefly recall the Jewish law's approach to the matter.

13.       As I said in the Ruchamkin case, this is also the approach of Jewish law, wherein the majority decision is only binding when arrived at following debate and minority participation. Based on this principle, Rashba ruled that a rabbinical court’s majority ruling is only binding when it had been made after debating and deliberating matters in the presence of all the judges: “There is no majority consent unless the majority consent is arrived at in the presence of all as a matter of general law” (Responsa Rashba 3:304). This is how this was summarized there:

The Tosefta places the emphasis upon changing times and circumstances: “Rabbi Judah says, why are the opinions of a single person from among the many recorded? So that if the time requires them, they can be relied upon” (Tosefta, Eduyot 1:4). These explanations assume that a majority decision does not make the court’s decision the only one of significance. The rejected minority opinion is not viewed as an error or mistake, but rather as a theoretical halakhic possibility that – while not the position adopted in practice at the time – may become so at other times. This is another reason for granting the minority the opportunity to express its view (ibid., para. 10).

 

This holds true for all those cases where the decisions of the democratic majority are accepted, but they are of special value when it comes to the Judicial Selection Committee. The Judicial Selection Committee is unique in its status, as shall be explained. At the same time, it highlights the principle of proportional representation and even adds to it. This is what I shall now address.

 

E. The Judicial Selection Committee

14.       The judicial appointment procedure is unlike any other appointment procedure carried out by the executive or the legislative branches (on administrative decisions by the legislative branch, see: Yoram Danziger, Strengthening Knesset Decisions, 34 Hapraklit 212 (1982) (Hebrew); Yitzhak Zamir, Administrative Authority, vol. I, 122 (2010) (Hebrew)). This is not an act of vertical delegation that allows the authorities to act via their long arm, as is the case of other committees, but a quasi-“constitutive” decision that establishes a horizontal, independent power that is parallel to the powers that form it, as “tongs are made with tongs” (Mishnah, Avot 5:6). While it is clear how the legislature and the executive are elected – the legislature is established based on the democratic principle of proportional representation, and the executive is based directly and arithmetically on counting the votes of the majority parties – not so the judiciary, which is an independent branch not directly derived from the majority parliamentary vote. The principle of judicial autonomy and independence forms the core of the idea of the separation of powers as regards the judiciary, according to the western tradition of the separation of powers fathered by Montesquieu (a political philosopher, jurist and member of parliament in 17th century France). In order to ensure that justice is done while fully safeguarding civil rights, the judicial branch must be detached from the other branches. Indeed, the principle of judicial independence guarantees that judicial discretion is only exercised with the principles of justice and the rule of law in mind, with no influence from extraneous entities and considerations (for an elaboration, see the volume published by the American Academy of Science: 137(4) Daedalus, on Judicial Independence (2008); in addition, see: Judicial Independence in Context (Adam Dodek and Lorne Sossin, eds. (2010); Aharon Barak, Judicial Discretion 265 (1987) (Hebrew)). One must bear in mind that under the constitutional model adopted by the large majority of western countries and in the Israeli legal system, the judiciary might even strike down decisions by the legislature.

 

Hence, the judicial branch is not—and must not be—the long arm of the legislative or executive branches. The judiciary must be autonomous and independent of the other branches. With that said, the judiciary is one of the three branches of government, and must manifest a commitment to the citizenry and democratic values. It does not operate in a void, but in various aspects, in clear collaboration with the other branches. As in the famous words of President A. Barak:

The judge’s autonomy and independence allow him to brave the daily waves. He must give expression to society’s long-term, fundamental trends, rather than to short-term, fleeting needs… It is in fact the judge, who has neither sword nor purse but only his autonomy and independence, training and experience, who is capable and worthy of reflecting the people’s fundamental perceptions. It is precisely his being divorced from the need to be elected from time to time that detaches the judge from the need to give expression to current sentiments, and it is that which gives him the ability and the power to give expression to deep values, which might at times be unpopular (Aharon Barak, The Role of the Supreme Court in a Democratic Society, 21 Iyyunei Mishpat 15-16 (1998) (Hebrew). See also: CA 6821/93 Mizrahi Bank v. Migdal [20], 427).

 

There is a partition between the judicial branch and the other branches. The same goes for the other branches. Note that this is a partition, not a wall. The life of democratic society and the democratic state as it has developed requires some interaction. Hence, too, the need for checks and balances. The correct measure of these systems is vital, but we will not dwell on this. In our case, we shall focus on the judiciary, the public and the democratic principle. We shall ask how the gap can be bridged between the judiciary's autonomy and independence, and its being one of the three branches of government, owing loyalty to the public. How does one resolve the tension between the two principles?   

15.       The gap between these two requirements is bridged, inter alia, by two basic requirements of the judiciary, beside the demand for autonomy and independence: accountability and reflection (see: Shimon Shetreet, Fundamental Values of the Justice System in Israel, Justice Orr Volume – A Collection of Articles in Honor of Justice Theodor Orr 525 (2013) (Hebrew); Shimon Shetreet, Institutional and Substantive Aspects of the Justice System in Historical Perspectives, 10 Mishpat Ve'Asakim 525, 572-583 (2009) (Hebrew)). In order to fulfil these requirements, there formed, inter alia, a mechanism that is unique to the judicial system, namely the court of appeals. Open hearing constitutes an important tool for the court, as well. However, we will not discuss internal review here, but external aspects. I will briefly specify these requirements, and then show that they, too, lend special weight to the importance of having the minority represented on the Judicial Selection Committee.

A.        Accountability: Even though the judiciary is not directly elected by the public, it is one of the state’s branches of government, it is accountable to the public, and thus to the legislature and the executive, as well. This was aptly expressed by Prof. Yoav Dotan:

A governmental system where the composition of the reviewing body directly reflects the political balance of power in parliament is a system susceptible to a series of failures from a constitutional perspective. For we have already said that at the very heart of the concept of constitutionality stands the view that one is justified in imposing certain limitations on the power of the representative legislator… On the other hand, the fact that the judicial review institution can be (and should be) less representative than the legislature does not mean that these institutions should be free of any duty of democratic accountability (Yoav Dotan, Judicial Review of Legislation – The Accountability Question, 10 Mishpat uMimshal, 495-496 (2007) (Hebrew)).

 

Whereas the principle of judicial independence allows the courts to be loyal to judicial integrity and the values of the law, of morals and of justice, accountability is what ties the judicial branch to the public and its values. This was aptly described by Stephen Burbank, a professor of law at the University of Pennsylvania:

Judicial independence is merely the other side of the coin from judicial accountability. The two are not at war with each other but rather are complements; neither is an end in itself but rather a means to an end (or variety of ends); the relevant ends relate not primarily to individual judicial performance but rather to the performance of courts and court systems; and there is no one ideal mix of independence and accountability, but rather the right mix depends upon the goals of those responsible for institutional architecture with respect to a particular court or court system” (Stephen B. Burbank, Judicial Independence, Judicial Accountability and Interbranch Eelations,137(4) Daedalus, on Judicial Independence 17 (2008)).

 

The judiciary is not an island. Judging—and more precisely, the judge, any judge—must rule to the best of his understanding and conscience, in line with the law and its requirements. The integration of the principle of autonomy and independence with the duty of accountability creates a proper balance between its being one of the branches of the democratic state, and its responsibility for the fundamental principles of the legal system and the binding norms. As a derivation from this duty, scholars and legal experts have emphasized the duty of reflection that applies to the judiciary.

B.        Reflection: As mentioned above, the judiciary must be autonomous and independent. In keeping with this, it is accepted that the principle of representation does not apply—certainly not fully and formally—to the judiciary. The latter must remain neutral and professional, steer clear of political labelling, and remain loyal to the values of law, justice and equity. And yet, even though the principle of representation does not apply to it, it must reflect the public within which it operates. This is the principle of reflection, which was adopted in many western countries and was even expressed in a number of international treaties (Sonia Lawrence, Reflections: On Judicial Diversity and Judicial Independence, in Judicial Independence in Context (Adam Dodek and Lorne Sossin, eds, 2010); Shimon Shetreet, The Administration of Justice: Practical Problems, Value Conflicts, and Changing Concepts, 13 U.B.C.L Rev. 52 (1973); Shimon Shetreet, On Assessing the Role of Court in Society, 10 Manitoba L.J. 399 (1980); The Montreal Universal Declaration on the Independence of Justice, 10 June 1983, Act 2.15; Mt. Scopus Approved Revised International Standards Independence § 7 (2008)). This also appears in the conclusions of the committee on the procedures for the election of judges headed by Justice Y. Zamir (March 12, 2011): “When the professional level and personal qualities exist in due measure, weight should also be attributed to the principle of social reflection” (chap. 16, para. 1).

            However, the relationship between the court and the principle of representation and reflection is more complex and not unidimensional. This relationship is not built upon formal, binding, rigid, arithmetic and mathematical rules, but on social sensitivity in the right dose, alongside professional considerations. This might also be reflected in the way that judges are selected.

            The importance of reflection also stems from considerations of visibility and public trust (Shimon Shetreet, The Doctrinal Reasoning for More Women Judges – The Principle of Reflective Judiciary, in Women in Law 183 (1998)), but more than that, from substantive considerations of justice. Prof. Alon Harel explains that the legitimacy of the court, despite not being subject to the principle of representation, derives from the principle of compatibility, whereby: “… rules and principles need to be sensitive to the public's moral beliefs” (Alon Harel, The Democratic Justification for Judicial Review, 5 Moznei Mishpat 90 (2006) (Hebrew)). Further on, it is explained that reflecting the public's values is a delicate balancing act between contradictory values. It is not the same as an accurate vote count:

                        The normative judgments of citizens involve different, complex values anchored in different practices, ways of life and world views. Sensitivity to such judgments in a democracy involves complex processes, and it is by no means self-evident that the compatibility requirement dictates the adoption of every majority-backed decision. Alternatively, it could be argued that the compatibility aspect of democracy can manifest itself in different ways, and there is no reason to claim a priori that “vote counting'” better serves the compatibility aspect than alternative mechanisms (ibid., p.. 91).

 

The legitimacy of the judiciary stems from and depends on this branch of government fulfilling a different role to that of the other branches. Strip society of the judiciary, and it is doubtful that it would long endure. It is no coincidence that, as Jewish law sees it, the children of Noah—the nations of the world—are subject to a mere seven commandments, of which only one is a positive commandment, namely the adjudication commandment—the duty to maintain a legal system (TB Sanhedrin, 56a). One might ask: Are various systems such as health and education not also vital for society? But Jewish law is resolute. It would seem that the origin and foundation of the public systems together with the individual's relations depend upon the legal system. Of course, the role of the legal system is not only to prevent social chaos, but also to improve society and contribute to making it more just. Against this background, the principle of judicial independence is vital for all of society. Thus, contrary to the decisions of the executive, which acquire their validity by virtue of the majority vote of the executive and even the legislature, judicial decisions also acquire their validity by virtue of reflecting the entirety of the public's values.

16.       The distinctive characteristics of the judiciary—autonomy and independence, the duty of accountability and the principle of reflection—give the representation of the minority on the Judicial Selection Committee a unique added value of great importance. And note, this procedure is not about norms that are binding upon the judiciary itself, but about the arrangements relating to the Judicial Selection Committee. However, as I shall now explain, these arrangements are influenced by the character of the judiciary and the guiding principles applicable to it. It is my opinion, as said, that in addition to the principle of adequate representation that applies to the Judicial Selection Committee as to all other committees, it applies most particularly to this committee. I shall explain.

A.        Autonomy and independence. The judiciary must be a neutral, autonomous entity that is independent of political players. For that to happen, the Judicial Selection Committee must also, to the extent possible, be a neutral committee, which does not patently represent a political faction or party. In this sense, the broader the representation—and if it also includes opposition members—the greater the independence. Where judges are appointed by a committee that is political in nature, this might “taint” the identity of the judges and violate the principle of autonomy and independence. It follows that in order to fulfil this important principle fully, there is value to the Judicial Selection Committee having representatives from both the coalition and the opposition.

B.        Accountability. As explained above, the fact that the judiciary must be independent does not make it unaccountable. It is its accountability that ties the judiciary to the other branches of government and the public. It should be noted that the tension between these two principles lies at the heart of the disagreement on the proper procedure for appointing judges in all western countries (Charles G. Geyh, Methods of Judicial Selection and their Impact on Judicial Independence, 137(4) Daedalus, On Judicial Independence 86 (2008)).

            The way in which the Israeli legislature chose to strike a balance between the principles is by means of the Judicial Selection Committee. In this respect, the Committee has to reflect the fact that the judiciary is not a long arm of the executive, but a twin sister on an equal footing with the executive and the legislature. This being the case, it is right to include the opposition's representative on the Committee, as well. This makes for full representation of the legislative branch. Note that the law itself provides representation for all three branches, and two members of Knesset as far as representing the legislature. It was not for nothing that the legislature decided upon representation by two Knesset Members, allowing the creation of a proper balance—as was indeed with the practice over time—between the coalition and the opposition. One must keep in mind that the appointment of judges is not an act of the executive, but a constituent act of all three branches of government together.

C.        Reflection. The two aspects presented above concern the framework characterizing the judiciary, and not the Committee's effects on the nature of judging. As presented above, the reflection principle expresses a deep, substantive concept of the judge's craft. “A judge sits among his people”. Thus, even though the judiciary is not held to the principle of representation, it is fitting that the choice of those selecting judges should reflect balances within society and the administration. Excluding the opposition from the Judicial Selection Committee could be detrimental to the value of reflection, and thus prevent the enhancement of public faith in the power of the strength of the judiciary.

            This is another expression of the principle of proportional representation. As mentioned in the beginning, substantive democracy is not just a way of deciding by majority, but of including the minority in the decision-making process. Such is the case in all areas and, so too, in the Judicial Selection Committee. In addition, as explained in detail, the special character of the Judicial Selection Committee lends particular importance to the minority's representation on the Committee.

            A substantive clarification is in order. The court is not a political institution, nor is the Judicial Selection Committee. The law says: “A committee member shall vote in accordance with his own discretion, and will not be obligated by the decisions of the entity on whose behalf he is a member on the committee” (sec. 6 of the Courts Law). The members of the Judicial Selection Committee must exercise their own discretion. Some might claim that a different approach can be extracted from the principles of accountability and reflection. This is not so. Accountability and reflection concern the public at large, with its values and principles. These are incorporated in the law. It is in this sense that minority representation is needed. It seems that the minority should be a part of the picture, not outside it. Its presence on the Judicial Selection Committee is desirable. Its values are part of the value system reflected in the law. This is a sensitive distinction: accountability and reflection—yes; representation for specific entities—no. The legislature was aware of this distinction, giving it expression in the Courts Law, which establishes a “representative” division as regards the Committee's composition—three branches of government and professional representatives—alongside a rule of independent discretion. This also explains why the election to the Judicial Selection Committee is secret. Independent discretion is also granted in the process of electing the Committee's members. This delicate way is the right way to look at these matters.                                                                                                                                                                          

17.       I shall now turn to a brief examination of the sources of Jewish law on the issue of appointing judges. The commandment of appointing judges appears in the Torah verses : “Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment” (Deuteronomy 16:18). The verse does not impose the duty of appointing judges specifically upon the leadership, but uses general language. Bible commentator Don Isaac Abravanel (Spain and Portugal, 15th century) infers from this verse that judges were not appointed by the leadership, but by the people:

                        And the master prophet clarified by this that the judges who are to be in Israel, should not be appointed by the king, or on his behalf, but should be appointed by the people. That is to say, that each and every tribe should appoint the suitable judges in each of their towns. That is why he says: “which the Lord thy God giveth thee, throughout thy tribes”. This implies that the Lord your God assigns the appointment of judges to your tribes, who will appoint them in their gates. Not the king (Abravanel's Torah Commentary, Deuteronomy 16:18. See also: Michael Vigoda, Appointment of Judges, 83 Parashat HaShavua (2002) (hereinafter: Vigoda) (Hebrew)).

 

Abravanel's commentary reflects an awareness that the judicial system has to be autonomous and independent of the executive, and so the appointment of judges should also fall to the public.

            It seems that Abravanel is concerned with the establishment of the judicial system in his and our times, in the absence of a Sanhedrin. For one might say that there is no disputing that at the time of the Sanhedrin, the appointment of judges, called smikhah, was done by the Sanhedrin with the consent of the Nasi, as described in the Jerusalem Talmud: “They decreed instead that the court shall not appoint without the Nasi’s approval, and the Nasi shall not appoint without the court's approval” (TJ Sanhedrin 6b. See also Maimonides’ description in Mishneh Torah, Sanhedrin 4:1). However, even when the appointment was in the hands of the Sanhedrin, the sources show that, beside the importance of the judge's knowledge of the Torah, the sages gave weight to his public stature as a key factor in his ordination. We learn this from the Tosefta in tractate Sanhedrin:

They used to send out and examine every one who was wise, levelheaded, sin-fearing and of mature age, with whom people are content. Such a one they made a judge in his city"(tSanhedrin 7:1).

 

In other words, beside the principle of autonomy and independence reflected in Abravanel's words, the judge must be held in public esteem. Grounds for this requirement can already be found in the Torah. Faced with Jethro's criticism of the burden placed upon him, “why sittest thou thyself alone, and all the people stand by thee from morning unto even?” (Exodus 18:14), Moses seeks out worthy judges capable of sharing in the task of adjudication. To do this, he addresses the public: “Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you” (Deut. 1:13). Rashi, in his comment on the verse, explains the need to appeal to the public in order to find the judges: “Men whom you recognize, for if one were to come before me wrapped in his tallith, I would not know who he is and of what tribe he is, and whether he is suitable. But you know him, for you have raised him. Therefore, it says, ‘known among your tribes’” (Rashi's Commentary on Deut. 1:13). A similar idea is presented by Nahmanides in his commentary on that verse: “And they were known to be judges from the start. For everyone would say: This one is fit to be a judge” (Nahmanides’ Commentary on Deut. 1:13).

            The tension between the aspiration to have the judge be a neutral party with no bias toward those who select him, and the requirement for him to be acceptable to the public and reflect its values, was resolved in different ways in the Jewish communities throughout history (see: Vigoda, ibid, and his references; Michael Vigoda, The Rabbinical Courts and the Appointment of Judges in Jewish Law, 12 Machanaim (1996) (Hebrew)). However, despite the differences between communities in the procedures for electing judges, the two principles—the judge's independence and the principle of reflection and accountability—are also present in the Jewish law sources. On the one hand, a judge must be independent and detached from the ruling authorities, and on the other hand, his appointment depends on his being accepted and esteemed by the public, which is also an active partner in his selection process.

            In our case, of particular interest is the passage in a book written by a justice of this Court—S. Assaf—describing the appointment of rabbinical judges in the Krakow community, as documented in the community journals (pinkasim):

                        On the first day of hol hamo’ed, the four “heads” and five “tovim” [community leaders, parnassim] and the fourteen members of the community council convened and took upon themselves “in true faith, with the consent of the Almighty and the consent of this congregation”, that they have neither undertaken nor shall undertake any conspiracy with anyone regarding the election, and that each of them shall express his opinion for the sake of heaven and in the public interest. Those assembled cast ballots into ballot box, with the name of one person only written on each ballot. The shamash [beadle] draws nine notes from the ballot, and those written on them are considered to be first electors. The nine electors step inside the synagogue, and the shamash has them take an oath before the open Holy Ark to elect five important, honest people as second electors. The shamash immediately gathers the five second electors in the synagogue and makes them swear that, in selecting all the community's officers, they will take into account only the public good. After the oath, they are put into a special room in the community building, where they sit “enclosed and secluded, no one leaves and no one comes to them… with the guards standing even at night to guard their doors”, and they select judges, community leaders, tovim, accountants and the rest of the community's officers for the coming year (from Simcha Assaf, Courts and their Procedures after the Sealing of the Talmud 44 (1924) (Hebrew)).

 

            Rabbinical judges are not appointed directly by the publicly elected officials, but by a special committee of “first electors” appointed by them. This practice reflects a balance between two values: On the one hand, it is the publicly elected officials who appoint the committee, thus maintaining the principle of “reflection”; but on the other hand, the appointment committee is elected in semi-random fashion by a “draw” of nine names out of 23 proposed by the community heads, which is also a way to fulfil the principle of autonomy and independence between the judges and the heads of the community. Thus, one might find some similarity in principle between the selection method used hundreds of years ago and the Judicial Selection Committee in place in Israel.

18.       In concluding this matter, the question of selecting judges is not strictly procedural. It embodies a fundamental question about the democratic and constitutional characteristics of the judiciary. The system that took shape in Israel over the years, with a view to balance the principles, determines that the appointment of judges is to be handled by the Judicial Selection Committee in its aforementioned composition, consisting of professional representatives alongside representatives from all three branches of government. Against this backdrop, the Knesset did well in establishing a practice, for a quarter of a century, whereby the legislature is to be represented by two Members of Knesset, as a requirement for equal representation by a member of the coalition alongside a member of the opposition. I have expressed my position that more weight should be accorded to a practice to the extent that it reflects a worthy constitutional position. This is not a sole consideration. To this one must add, as mentioned, the internalization of the practice, but this consideration adds weight of its own to the validity of the existing practice. The practice has normative components. The convergence of the principle of proportional representation for the minority and the Judicial Selection Committee strengthens the conformity of the practice with the State of Israel's constitutional system of the early 21st century. This is the actual practice, and it should thus be followed—if not more than that—in the future as well.

 

F. Conclusion

19.       Everything we have said can be summarized as follows: The petition's submission was seriously delayed. The Petitioners failed to act in the months following Yisrael Beitenu's crossover to the coalition, with no plausible explanation provided. During these months, the Committee worked intensively. In particular, proceedings were initiated to consider candidates for the Supreme Court. The implications of accepting the petition at the present time might directly affect these sensitive proceedings. Moreover, the Petitioners are asking us for a first-ever decision on the status of constitutional custom in Israel. They want us to determine that such a custom exists in our case, while extending the custom by interpretation to cases in which it was never applied. Consequently, we cannot grant the petition in its current form. With that said, it is important for the Court to state its position on the practice of appointing at least one Knesset Member from the opposition parties to the Committee. In my view, without deciding the issue of constitutional custom, its continued existence is very important, and this by virtue of constitutional principles of the system, which recognize the principle of proportional representation. The current parliamentary thinking is that the opposition should not be left to sit idle in a corner pending the next elections. It has a role to play. Its contribution is important for the Knesset's work. This is what emerges from the law and the case law presented above.

            We have seen the strength of the principle of proportional representation in Israel's governance and administration procedures. We have shown the importance of the Judicial Selection Committee. The legislature itself saw fit to bring together an unusual forum comprising senior members of the judiciary and the executive, as well as representatives of the legislature elected by secret ballot, along with professionals. One would be hard-pressed to point to a forum so unique in its composition in other contexts. However, when it comes to the Judicial Selection Committee, this is required. The combination between the two—the principle of proportional representation and its significance, and the Judicial Selection Committee—sheds light on the practice to elect a representative from the opposition parties to the Committee. The combination explains it historically. It emphasizes its importance as a value against the background of the constitutional principles of the system. All of these serve as an important foundation in examining the existence of a constitutional custom as well.

            Let me stress once more that I am not deciding all of the Petitioners' claims. The questions are not easy. The answers to them raise some complexity. But the wise have eyes to see. Let us say that from a forward looking perspective and in terms of desirable governance—and possibly even beyond—it is right to maintain the practice whereby the opposition parties are represented on the Judicial Selection Committee. Let us spell this out: We are not intervening in the present case. However, should the Knesset decide, come the next election to the Judicial Selection Committee, not to appoint a representative from the opposition parties on its behalf in the election of the Committee—it will face a serious legal hurdle. Moreover, one might think that the Knesset would do well to consider formulating the vague rule into a clear rule. One way or another, should it be decided to depart from this practice, the parties' arguments are reserved for them.

            Let us end by going back to our opening words, where it was clarified that this petition and its content are delicate and sensitive: The relationship between the Court and the Knesset in carrying out its role of appointing representatives to the Judicial Selection Committee. But it seems that, rather than tension, what was created is a kind of normative harmony. The Knesset did well to adopt the practice for 25 years. This is proper. In this, it served as an example for developing society as a Jewish and democratic society.

20.       I would recommend that we dismiss the petition without an order for costs. The very act of submitting the petition made a contribution, even if the petition has been dismissed.

 

 

Justice I. Amit:

I concur in dismissing the petition.

1.         My colleague Justice N. Hendel has painted a broad, fascinating canvas of judicial autonomy, drawing widely on the hidden treasures of our sources and on comparative law. The independence of judges underlies the democratic system, and none dispute the importance of this principle. One of the conditions required in order to guarantee the autonomy and independence of judges in Israel is that the four representatives of the legislative and executive branches not be homogeneous. The great danger inherent in this kind of situation has not escaped the Knesset, and there is a reason why a kind of constitutional convention formed over the years that the votes in the Knesset to elect the representatives to the Committee would be held in such a way that at least one of the two representatives would belong to the opposition (I would note that in one past case, a situation came about where two representatives of the opposition were elected). This is the customary practice and also the proper normative state of affairs, as the Knesset's attorney confirmed to us. The Knesset is therefore to be commended for having followed and for following this practice for years.

2.         The case before us is “accidental”, an exceptional instance born of political vicissitudes, where a party whose members sat on the opposition benches (and I am not addressing the question of whether every party that is not in the coalition is “automatically” considered an opposition party for the purposes of representation on the Committee) crossed the lines to the coalition benches. Cases like these come under section 6(1) of the Courts Law [Consolidated Version], 5744-1984, which states as follows:

6. These provisions shall apply in the matter of the Judicial Selection Committee, where, in accordance with section 4 of Basic Law: The Judiciary (hereinafter: the Committee):

 

(1)The Knesset shall elect by secret ballot the two Members of Knesset who shall serve as members of the Committee; they shall serve as long as they are Members of Knesset, and if the Knesset's term has ended—until the new Knesset elects other members in their stead, and all subject to the provisions of the Knesset Law.

 

It appears that the legislature did not envisage the exceptional case before us, but the provisions of the law are clear, and the practice and custom yield to an explicit law of the Knesset. For me, this is reason enough to reject the petition, and to do so without laying down hard-and-fast rules regarding constitutional custom as a binding legal source.

3.         The petition has raised an important issue that deserves consideration. The legislature would do well to enshrine the customary practice we pointed to above in the Courts Law. This was done in Amendment no. 74 of 2014, which added sec. 6 (3a) to the Law in order to ensure female representation on the Committee:

3a. At least one of the representatives of the Supreme Court justices on the Committee, at least one of the government representatives on the Committee, at least one of the Knesset representatives on the Committee and at least one of the representatives of the Israel Bar Association on the Committee shall be women;

 

            Let me note that in other contexts, the legislature has taken into account the need to guarantee the opposition proper representation. Thus, sec. 13D(a) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951, establishes types of cases where a Knesset Member would be subject “to judgment by the Ethics Committee”, and sec. 13D(b)(1) of said law states as follows:

The Ethics Committee shall consist of the four Knesset Members who will be appointed by the Speaker of the Knesset, for the term of that Knesset, taking into account, inter alia, the parties making up the Knesset, two of them members of the coalition parties and two of them members of the opposition parties; the Speaker of the Knesset shall designate the chairperson of the Ethics Committee from among its members;

 

            The legislature thus saw to it that the Ethics Committee would not be solely made up of Knesset Members belonging to the coalition, in order to ensure the autonomy and independence of this committee. If such is the case for an internal, quasi-judicial Knesset committee, then all the more so when it comes to the Judicial Selection Committee, whose composition is meant to guarantee the principle of autonomy and independence on which the entire judicial system hinges. And indeed, the importance of this issue did not escape the eyes of Knesset Members in the past who tabled private-member bills in each of the last four Knesset terms in order to set this practice in law. But we need not go that far. The incumbent Minister of Justice, Ayelet Shaked, was aware of the importance of this principle while still a Knesset Member, and I shall refer to the private-member bill she submitted at the time, together with MK Yariv Levin (P/1994/19). The private-member bill, as it relates to the Knesset's representatives, proposes that “one shall be a representative of the coalition parties and one a representative of the opposition parties”, and the explanations for the proposed amendment read as follows:

It is proposed to bindingly establish in law the practice whereby the Knesset's representatives to the Judicial Selection Committee are elected one from the ranks of the coalition and one from the ranks of the opposition, in order to ensure that the choice of Knesset representatives, too, reflects the variety of views prevalent among the public as expressed in the elected composition of the Knesset (emphasis added—I.A.).

 

            At the very least, the Knesset would do well to anchor the existing practice in the Knesset's Rules of Procedure, where representation is given to  members of the opposition parties in various frameworks of parliamentary activity.

 

Justice U. Vogelman:

Like my colleague Justice Hendel, I too believe that the petition should be dismissed in limine owing to the delay in its submission. As a result, I did not see fit to take up the hefty question regarding the place of constitutional custom as a binding legal source in our legal system, nor determine the necessary preconditions for its formation. I say this even as I share my colleagues' view that the Knesset's customary practice of electing a representative from a coalition party and a representative from an opposition party for membership on the Judicial Selection Committee is worthy and serves important governance purposes. Therefore, it is also my view, and without deciding the question of whether a constitutional custom applies in general or in the circumstances of this case in particular, that the Knesset would do well to regulate the issue explicitly.

Needless to say, in the absence of such regulation, should the Knesset fail to elect a representative on behalf of the opposition parties during the next elections for the Judicial Selection Committee, the arguments of all parties are reserved for them.

 

The petition is dismissed without an order for costs, as stated in the opinion of Justice N. Hendel.

 

Given this day 5 Shvat, 5777 (Fe. 1, 2017).

 

 

 

Movement for Quality Government in Israel v. Speaker of the Knesset

Case/docket number: 
HCJ 2144/20
Date Decided: 
Wednesday, March 25, 2020
Decision Type: 
Original
Abstract: 

Facts:

 

Elections for the 23rd Knesset were held on March 2, 2020, and the new Knesset was set to be sworn in on March 16, 2020. On March 15, 2020, in anticipation of the swearing in of the Knesset, several factions, comprising 61 Members of Knesset, requested that the acting Speaker of the Knesset, MK Yoel (Yuli) Edelstein, include a motion for the election of a permanent Speaker for the 23rd Knesset on the agenda of that session. The Speaker refused.

 

Petitions challenging that decision were filed in the High Court of Justice by The Movement for Quality Government, the “Hozeh Hadash” Association, The Association for Progressive Democracy, the Blue and White faction and the Labor-Meretz faction, and the Yisrael Beiteinu faction (the Petitioners).

 

The Petitioners argued that the acting Speaker had a personal conflict of interests, is acting unreasonably, and that his decision not to include the election of a permanent Speaker of the Knesset on the Knesset agenda is tainted by extraneous considerations. The Petitioners added that sec. 2(b) of the Knesset Rules of Procedure requires that the Speaker of the Knesset be elected no later than the date on which the Knesset convenes for the purpose of establishing the Government,  and emphasized that the current Speaker, who acts by virtue of the Knesset continuity rule, is frustrating the will of the majority of the Members of Knesset, and is undermining public trust in the organs of government and the principle of the separation of powers. The Petitioners also asked for additional remedies concerning the appointment of an Arrangements Committee and the issue of the application of the Public Health (New Coronavirus) (Home Isolation and Other Directives) (Temporary Provision) Order, 5790-2020, to the activity of the Knesset,

 

The Respondents argued that the Court should not intervene in the Speaker’s decision. According to the Speaker, he enjoys discretion in setting the agenda of the plenum, and he therefore acted within the bounds of his authority, reasonably, and in accordance with custom. The Knesset Legal Advisor argued that the Speaker is granted discretion in regard to setting the agenda, and that the Knesset Rules of Procedure require the election of a permanent Speaker prior to the establishment of the Government. However, the current Speaker holds office by virtue of the continuity doctrine, and holds his office “as a temporary trust” until the election of a permanent Speaker. Therefore, inasmuch as a majority of the Members of Knesset requests that the Knesset elect a permanent Speaker immediately, the margins of the Speaker’s discretion in regard to postponing the date contract with the passage of time. The Likud faction argued that the Speaker acted in accordance with the law and the Knesset Rules of Procedure, and that the Court should not intervene in his exercise of discretion.

 

On March 23, 2020, the High Court of Justice (President E. Hayut, Deputy President H. Melcer, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit) issued a partial judgment, treating only of the issue of the election of a permanent Speaker. In granting the petitions, the unanimous Court held:

 

Per President E. Hayut:

  1. As a rule, the Court refrains from intervening in internal parliamentary matters, except in special cases that threaten harm to the fabric of democratic life or to the fundamental structure of our parliamentary regime.
  2. Section 2(b) sets a timeframe according to which the latest date for the election of the Speaker of the Knesset after its convening is the date of the establishing of the Government. This provision leaves it to the discretion of the acting Speaker to decide upon the date within this timeframe in which it is possible to put the election of the permanent Speaker on the agenda of the plenum.
  3. Given the fact that the acting Speaker serves by virtue of the continuity rule, and given that the matter directly concerns him, the discretion afforded him in this regard is very limited and defined. The acting Speaker holds his office “as a temporary trust” until the election of a permanent Speaker. This exceptional situation necessarily affects the scope of the Speaker’s authority and his discretion. The Speaker’s decision not to bring the matter of electing a permanent speaker for a plenary vote is incompatible with the scope of his authority as acting Speaker, and it deviates from the margin of discretion granted to him.
  4. The defect in the Speaker’s conduct primarily inheres in the fear that it represents a frustration of the will of the electorate. The essence of the democratic process is the possibility of translating the votes received by the members of the Knesset, as the elected representatives of the people, into political influence. In the present matter, the house factions, comprising 61 Members of Knesset, seek to exercise their political power in order to elect a permanent Speaker for the 23rd Knesset. Intervention in this effort of the majority of the Members of Knesset constitutes a form of harm to the decision of the electorate.
  5. The Speaker’s position that the election of a permanent Speaker is contingent upon the efforts to form a Government puts the cart before the horse. The Knesset is the sovereign. The Knesset is not “the Government’s cheerleading squad”. Political considerations have no place in the margin of discretion granted the Speaker on the question of whether or not to include motions for the agenda of the Knesset plenum, and all the more so when the matter is the election of the Speaker himself.
  6. The Speaker’s continued refusal to allow the Knesset plenum to vote on the election of a permanent Speaker undermines the foundations of the democratic process. It clearly harms the status of the Knesset as an independent branch of government and the process of governmental transition. Therefore, there is no recourse but to conclude that we are concerned with one of those exceptional cases in which the intervention of this Court is required in order to prevent harm to our parliamentary system of government.

 

Per Justice Y. Amit (concurring):

  1. In its plain meaning, democracy is “majority rule”. However, majority rule is not omnipotent. In the area of legislation, majority rule is subject to limitations deriving from the need to preserve the fundamental rights of people and citizens. In parliamentary activity, majority rule cannot trample the rights of the parliamentary minority. This is the source of the Court willingness to review even “internal” decisions of the legislature in order to protect the right of the minority, despite the judicial restraint that it exercises in regard to intervention in Knesset decisions.
  2. The present petitions entangle this Court in a situation that was not previously imagined. The Petitioners ask the Court to extend relief to the Parliamentary majority and protect the institutional, “core” right of the majority to realize its rights. The harm to the parliamentary majority that seeks to elect a Speaker of the Knesset who “in the fulfilment of his duties represents all the factions of the Knesset and stands at the head of the Knesset” constitutes harm to the fabric of democratic life and to the fundamental structure of our parliamentary regime. This Court’s intervention is required in order to allow the parliamentary majority to realize its right to elect the Speaker. Our judgment is not a form of intervention, and is not a “takeover” of the Knesset’s agenda, but merely a buttressing of the status of the Knesset as an independent branch of government, separate from the Government, and a fortiori from an interim government.

 

            Justice U. Vogelman (concurring):

  1. The authority to set the Knesset’s agenda allows for arranging “internal parliamentary” life, while addressing the quantity and substance of the subjects before the Knesset. This authority to arrange is not authority to ignore a request by a majority of the Members of Knesset to carry out a statutory procedure required by a Basic Law due to a conceptual or political view held by the acting Speaker. In a situation in which a majority of Knesset Members request to hold an election for the office of Speaker in the framework of sec. 20(a) of Basic Law: The Knesset, the election process should be permitted to proceed without delay, and it should not be frustrated by reason of the acting Speaker’s view that electing a Speaker will harm the attempt to form a unity Government.

 

            Deputy President H. Melcer (concurring):

  1. Every “interim government” suffers from “democratic deficit”, and an “interim government” after elections suffers from the most severe deficit, inasmuch as the voters have had their say. In such a case, the Knesset should oversee the “interim government” more closely, and act in accordance with the will of the majority of its members, while respecting the rights of the minority.
  2. In Great Britain, on the eve of Brexit, the Prime Minister sought to prorogue Parliament so that it would not prevent him from completing the separation process from the European Union that he wished to advance. He therefore turned to the Queen, who agreed, on the basis of the representations of the Prime Minister. An expanded bench of the Supreme Court held that there was no authority to prorogue Parliament. This affair is similar to our own, and the reasons given there are appropriate here, as well.
  3. Intervention is required here, as it was in Great Britain in R. v. Prime Minister, as without it, “the fabric of democratic life” and “the fundamental structure of our parliamentary regime” will be undermined.

 

The Court therefore made an order absolute instructing that the Speaker of the Knesset must convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23rd Knesset, and no later than Wednesday, March 25, 2020.

 

Following the issuing of the above judgment, on March 25, 2020, the acting Speaker convened a plenary session of the Knesset, gave notice of his resignation, and adjourned the session. In so doing, the Speaker violated the order absolute instructing him to convene the plenum for the purpose of electing a permanent Speaker. In response, the Court held:

 

Per President E. Hayut:

  1. Respect for the rule of law is the cornerstone of every democratic regime, and it is proven, inter alia, by obeying judicial decisions and orders. This duty to comply is imposed upon the entire population, and the organs of government are not exempt. Never in the history of the State has any governmental office openly and defiantly refused to carry out a judicial order while declaring that his conscience does not allow him to comply with the judgment. An unprecedented violation of the rule of law requires unprecedented remedies.
  2. The Court therefore ordered that the most veteran Member of Knesset be appointed as Speaker to act as follows:

 

(1)        To apply to the Arrangements Committee, by virtue of sec. 19 of the Knesset Rules of Procedure, for the purpose of convening the Knesset plenum tomorrow, Thursday, March 26, 2020, even though it is not a day that the plenum convenes under the Rules of Procedure;

(2)        To set the agenda for that session, by virtue of sec. 25 of the Knesset Rules of Procedure, and include the motion for the election of a permanent Speaker of the Knesset

(3)       To preside over that session.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Non-writer
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

HCJ 2144/20

HCJ 2145/20

HCJ 2169/20

HCJ 2171/20

HCJ 2175/20

 

Petitioner in HCJ 2144/20:                 Movement for Quality Government in Israel

 

Petitioner in HCJ 2145/20:                 Hozeh Hadash” R.A.

 

Petitioner in HCJ 2169/20:                 Association for Progressive Democracy

 

Petitioners in HCJ 2171/20:                1.  Blue and White Faction

                                                            2.  MK Avraham Nissenkorn

                                                            3.  Labor-Meretz Faction

 

Petitioners in HCJ 2175/20:                1.  Yisrael Beiteinu

                                                            2.  MK Oded Forer

 

                                                                        v.

 

Respondents in HCJ 2144/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Knesset Legal Advisor

                                                            4.  Likud Knesset Faction

 

Respondents in HCJ 2145/20:            1.  Speaker of the Knesset

                                                            2.  Knesset Legal Advisor

                                                            3.  Attorney General

                                                            4.  The 34th Government of Israel

                                                            5.  Likud Faction

 

Respondents in HCJ 2169/20:            1.  Speaker of the Knesset

                                                            2.  Likud Faction

 

Respondents in HCJ 2171/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Likud Faction

 

Respondents in HCJ 2175/20:            1.  Speaker of the Knesset

                                                            2.  The Knesset

                                                            3.  Knesset Legal Advisor

                                                            4.  Likud Faction

 

 

Attorneys for the Petitioners

in HCJ 2144/20:                                  Eliad Shraga, Adv., Tomer Naor, Adv., Hiday Negev, Adv.

 

Attorney for the Petitioners

in HCJ 2145/20:                                  Yuval Yoaz, Adv.

 

Attorney for the Petitioner

in HCJ 2169/20:                                  Yifat Solel, Adv.

 

Attorneys for Petitioners 1-2

in HCJ 2171/20:                                  Shimon Baron, Adv., Eran Marienberg, Adv., Oded Gazit, Adv.

 

Attorney for Petitioner 3

in HCJ 2171/20:                                  Omri Segev, Adv.

 

Attorney for the Petitioner

in HCJ 2175/20:                                  Eitan Haberman, Adv.

 

Attorneys for Respondents 1-3

in HCJ 2144/20; Respondents

1-2 in HCJ 2145/20; Respondent 1

in HCJ 2169/20; Respondents 1-2

in HCJ 2171/20; Respondents 1-3

in HCJ 2175/20:                                  Eyal Yinon, Adv., Avital Sompolinsky, Adv.

 

Attorney for the Respondent

In HCJ 2145/20:                                  Nahi Benor, Adv.

 

 

Attorneys for Respondent 4 in

HCJ 2144/20; Respondent 5 in

HCJ 2145/20; Respondent 2 in

HCJ 2169/20; Respondent 3 in

HCJ 2171/20; Respondent 4 in

HCJ 2175/20:                                      Avi Halevi, Adv., Michael Rabello, Adv.

 

 

 

Israeli Supreme Court cases cited:

[1]        HCJ 4044/95 Porat v. Speaker of the Knesset, IsrSC 49(4) 177 (1995)

[2]        HCJ 652/81 M.K. Yossi Sarid v. Chairman of the Knesset, Menachem Savidor, IsrSC 36(2) 197 (1982) [https://versa.cardozo.yu.edu/opinions/mk-sarid-v-chairman-knesset]

[3]        HCJ 8815/05 Landstein v. Spiegler, (Dec. 26, 2005)

[4]        HCJ 7510/19 Or-Cohen v. Prime Minister, (Jan. 9, 2020)

[5]        HCJ 4374/15 Movement for Quality Government v. Prime Minister, (March 27, 2016) [summary: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]        HCJ 706/19 Freij v. Speaker of the Knesset, (March 28, 2019)

[7]        HCJ 3747/19 Aviram v. Knesset of Israel, (June 18, 2019)

[8]        HCJ 1843/93 Raphael Pinchasi, Deputy Minister and Member of Knesset v. Knesset of Israel, IsrSC 49(1) 661 (1995)

[9]        HCJ 2704/07 Movement for Governmental Fairness v. Knesset Committee, (Jan. 28, 2008)

[10]      HCJ 1179/90 Ratz Faction – The Movement for Civil Rights and Peace v. MK Ovadia Ali, Deputy Speaker of the Knesset, IsrSC 44(2) 31 (1990)

[11]      HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister of Israel, (April 13, 2016) [https://versa.cardozo.yu.edu/opinions/yesh-atid-party-v-prime-minister]

[12]      HCJ 142/70 Shapira v. Bar Association District Committee, IsrSC 25(1) 325 (1971)

[13]      HCJ 4805/07 The Center for Jewish Pluralism – The Movement for Progressive Judaism in Israel v. Ministry of Education, IsrSC 62(4) 571 (2008) [https://versa.cardozo.yu.edu/opinions/center-jewish-pluralism-v-ministry-education]

[14]      HCJ 4742/97 Meretz Faction in the Jerusalem Municipality v. Minister for Religious Affairs, (Dec. 15, 1998)

 

Supreme Court of the United Kingdom cases cited:

[15]      R. v. The Prime Minister; Cherry v. Advocate General for Scotland, UKSC 41 (2109)

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

 

Petitions for order nisi

 

 

Partial Judgment

(March 23, 2020)

 

President E. Hayut:

1.         The five petitions before the Court are directed against Respondent 1, the acting Speaker of the Knesset (hereinafter: the Speaker), not to include the election of a permanent Speaker for the 23rd Knesset on the Knesset plenary agenda, although a request in this matter was presented to him by Knesset factions representing 61 Members of Knesset.

            At the outset, I would note that some of the petitions requested additional remedies concerning the appointment of an Arrangements Committee, and in regard to the application of the provisions of the Public Health (New Coronavirus) (Home Isolation and Other Directives) (Temporary Provision) Order, 5790-2020 (hereinafter: the Public Health Regulations) to the activity of the Knesset, due to the outbreak of the coronavirus in Israel. However, as we noted in our decision from yesterday (March 22, 2020), it would appear that those remedies became superfluous when it became clear from the responses of the relevant respondents and the explanations of the Knesset Legal Advisor in the hearing that the appointment of the Arrangements Committee is on the agenda of today’s plenary session, and the Public Health Regulations will not prevent convening the Knesset plenum and committees. Therefore, we ordered an updated notice in regard to these two issues, and the hearing before the Court focused upon the question of convening a plenary session for the purpose of electing a permanent Speaker.

            This partial judgment will, therefore, address this question alone.

 

Factual and historical background

2.         Elections for the 23rd Knesset were held on March 2, 2020, and it was set to be sworn in on March 16, 2020. In anticipation of the swearing in of the Knesset, several factions, comprising 61 Members of Knesset, requested that the Speaker of the Knesset include on the agenda of that session, inter alia, a motion for the election of a permanent Speaker for the 23rd Knesset. The Speaker refused to do so, giving as his reason that “the immediate need of the State of Israel is a broad unity government […]”, and added that “hasty political moves, like electing a permanent Speaker of the Knesset and the enactment of controversial legislation, are intended to put an end to the possibility of the unity that the nation desires”.

            On March 15, 2020, the attorneys of the Blue and White faction requested that the Knesset Legal Advisor express his opinion as to the Speaker’s refusal to accede to their request to include the matter of electing the Speaker on the Knesset’s agenda. The following day, the attorneys of the Blue and White faction renewed their request to the Speaker of the Knesset and the Knesset Legal Advisor, and insisted that, in their opinion, the Speaker did not have the authority to prevent a debate on this matter. In a letter sent by the Knesset Legal Advisor to the Speaker of the Knesset on March 18, 2020, the Knesset Legal Advisor addressed the importance of convening the Arrangements Committee, but refrained from addressing the issue of appointing a permanent Speaker.

3.         That led to the submission of the petitions before the Court, which were submitted by The Movement for Quality Government, the “Hozeh Hadash” Association, The Association for Progressive Democracy, the Blue and White faction and the Labor-Meretz faction, and the Yisrael Beiteinu faction (hereinafter, collectively: the Petitioners). All of the petitions are directed against the acting Knesset Speaker, MK Yoel (Yuli) Edelstein, and part against the Knesset and the Knesset Legal Advisor, Advocate Eyal Yinon. One petition (HCJ 2145/20) was also directed against the Attorney General and the Government. At its request, the Likud faction (hereinafter: the Likud) was joined as a respondent to the petitions.

 

Arguments of the parties

4.         The Petitioners argue that the acting Speaker has a personal conflict of interests, is acting unreasonably, and that his decision not to include the election of a permanent Speaker of the Knesset on the Knesset agenda is tainted by extraneous considerations. The Petitioners note that sec. 2(b) of the Knesset Rules of Procedure, which establishes that the Speaker of the Knesset be elected no later than the date on which the Knesset convenes for the purpose of establishing the Government, defines the final date for the election of the permanent Speaker, and emphasize that the current Speaker, who acts by virtue of the Knesset continuity rule, is frustrating the will of the majority of the Members of Knesset, and is thereby undermining public trust in the organs of government and the principle of separation of powers.

5.         As opposed to this, Respondents 1-3 – the acting Speaker, the Knesset, and the Knesset Legal Advisor – argue that this Court should not intervene in the Speaker’s decision, and that in accordance with sec. 2(b) of the Knesset Rules of Procedure, the Speaker can be elected at any stage between the convening of the Knesset and the establishing of the Government. However, the positions of the Speaker and of the Legal Advisor diverged on this point. According to the Speaker, he enjoys discretion in deciding upon the agenda of the plenum, and he therefore acted within the bounds of his authority, reasonably, and in accordance with custom when he took account of considerations related to the coalition negotiations, particularly in light of the outbreak of the coronavirus and the national state of emergency. As opposed to that, the Knesset Legal Advisor is of the opinion that while the Speaker is, indeed, granted discretion in regard to setting the agenda of the plenum, and that the Knesset Rules of Procedure require the election of a permanent Speaker prior to the establishment of the Government, but he adds that the current Speaker holds office by virtue of the continuity doctrine, and “as a temporary trust” until the election of a permanent Speaker. Therefore, inasmuch as a majority of the Members of Knesset requests that the Knesset elect a permanent Speaker immediately, the margins of the Speaker’s discretion in regard to postponing the date contract with the passage of time.

            The Likud is of the opinion that the Speaker acted in accordance with the law and the Knesset Rules of Procedure, and that the Court should not intervene in the exercise of his discretion.

6.         In the hearing held on March 22, 2020, the Knesset Legal Advisor though it appropriate to point out that electing a permanent Speaker of the Knesset before clarifying the balance of political power and the future composition of the Government could lead to a “governance problem” that could severely impact the functioning of the Government if it ultimately transpires that the permanent Speaker of the Knesset is a member of the opposition. However, the Knesset Legal Advisor explained in the course of his arguments that at present, and in order to prevent “serious mishaps”, we should wait for “an additional, short period”, and no more. In the hearing, the Attorney General, who did not address the issue of appointing a permanent Speaker in his written response, also pointed out that, in his view, once 61 Members of Knesset asked that the subject be placed on the agenda, the Speaker must accede to the request “as soon as possible”.

 

Discussion and decision

7.         The rule is that the authority to establish the Knesset’s agenda and the date of its deliberations is granted to the Speaker (see sec. 25(b) of the Knesset Rules of Procedure). These are clearly “internal parliamentary” matters, and as a rule, this Court refrains from intervening in them (see: HCJ 4044/95 Porat v. Speaker of the Knesset [1] 179), except in special cases that threaten harm to “the fabric of democratic life” (ibid.) or to the fundamental structure of our parliamentary regime (HCJ 652/81 Sarid v. Chairman of the Knesset [2]).

            Does the Speaker’s refusal to put the election of the permanent Speaker of the 23rd Knesset on the plenum’s agenda constitute one of those special cases in which there is a fear of harm to “the fabric of democratic life” or to the fundamental structure of our parliamentary regime?

            That is the central question presented for decision in the petitions before the Court.

8.         These are the primary legal provisions relevant to the matter:

            Section 20(a) of Basic Law: The Knesset provides that:

The Knesset shall elect from among its members a Speaker and Deputy Speakers. Until the election of the Knesset Speaker, the Speaker of the outgoing Knesset shall continue to serve, should he have been reelected as a Member of the Knesset, and if he has not been reelected the most veteran Knesset Member, who is not the Prime Minister, a Minister or Deputy Minister, shall serve as acting Speaker. In this article, "most veteran" – whoever has served in the Knesset for the longest period, consecutively or intermittently, and from among those with equal seniority – the eldest among them.

            The language of this provision was established in an amendment to the Basic Law in 2016. Prior to that amendment, the most veteran Knesset Member served as acting Speaker even if the Speaker of the outgoing Knesset was reelected as a Member of Knesset. The Explanatory Notes to the Bill noted that the amendment was intended to apply the continuity principle to the office of Speaker of the Knesset, in a manner similar to that set out in sec. 30 of Basic Law: The Government in regard to the continuity of the Government.

            Section 2(b) of the Knesset Rules of Procedure, mentioned above, further establishes in regard to the election of the Speaker of the Knesset:

The Speaker shall be elected no later than the date on which the Knesset convened for the purpose of establishing the Government, as stated in article 13 of Basic Law: The Government. Should the election of the Knesset Speaker be scheduled for the same date set for the sitting for the purpose of establishing the Government, the Speaker shall be elected first.

            Section 2(b) sets a timeframe according to which the latest date for the election of the Speaker of the Knesset after its convening is the date of establishing the Government. This provision leaves it to the discretion of the acting Speaker to decide upon the date within this timeframe for putting the election of the permanent Speaker on the agenda of the plenum.

            As opposed to the position of Respondent 1, we are of the opinion that, given the fact that we are concerned with an acting Speaker serving by virtue of the continuity rule, and given that the matter directly concerns him, the discretion afforded him in this regard is not broad, but rather very limited and defined. This is particularly true given that over the course of the last year, there were three elections, and Respondent 1 has, in practice, served as acting Speaker since the convening of the 22nd Knesset.

9.         Indeed, since the dissolution of the Knesset on Dec. 26, 2018, we are locked in an exceptional governance situation that is the result of the failure of the public’s representatives to constitute a permanent Government in Israel even after three rounds of elections that took place on April 9, 2019, on Sept. 17, 2019, and on March 2, 2020. On April 30, 2019, following the elections for the 21st Knesset, at the time of swearing in of the Knesset, Respondent 1 was elected to serve as Speaker by a majority of 101 Members of Knesset and without opposition. He now serves as acting Speaker by virtue of the continuity principle under sec. 20(a) of Basic law: The Knesset, after the 21st Knesset and the 22nd Knesset ended their short terms and dissolved. As the Knesset Legal Advisor stated in his response to the petitions, the Speaker holds his office “as a temporary trust” until the election of a permanent Speaker. This exceptional situation necessarily affects the scope of the Speaker’s authority and his discretion. Just as an interim Government acting by virtue of the continuity principle is required to act cautiously and with restraint (see: HCJ 8815/05 Landstein v. Spiegler [3], para. 9 of the opinion of Justice A. Procaccia; HCJ 7510/19 Or-Cohen v. Prime Minister [4], para. 8 of my opinion), so, too, the acting Speaker. The importance of caution and restraint on his part becomes particularly clear in view of the character of the role of the Speaker, which obligates him to impartiality and stateliness[1] (Amnon Rubinstein & Barak Medina, The Constitutional Law of the State of Israel: Institutions, 716 (2005) (hereinafter: Rubinstein & Medina) (Hebrew); Amnon Rubinstein & Raanan Har-Zahav, Commentary on Basic Law: The Knesset, 80 (1993) (hereinafter: Rubinstein & Har-Zahav) (Hebrew)). In the present case, there is no avoiding the conclusion that the Speaker’s decision not to bring the matter of electing a permanent Speaker for a plenary vote is incompatible with the scope of his authority as acting Speaker, and it deviates from the margin of discretion granted to him.

10.       The defect in this conduct primarily inheres in the fear that it frustrates the will of the electorate. As we know, “the elections for the Knesset constitute the implementation of the basic principle of decision-making in a democratic system of government – decision by the majority” (Rubinstein & Medina, p. 557). The essence of the democratic process is the possibility of translating the votes received by the members of the Knesset, as the elected representatives of the people, into political influence. In the present matter, the house factions, comprising 61 Members of Knesset, seek to exercise their political power in order to try to elect a permanent Speaker for the 23rd Knesset, a role whose importance and centrality to the administration of the affairs of the Knesset requires no elaboration (see sec. 6 of the Knesset Rules of Procedure). Therefore, intervention in this effort of the majority of the Members of Knesset constitutes a form of harm to the decision of the electorate. In this regard, as the legal advisors of the Knesset and the Government noted, the passage of time after the date of the convening of the Knesset is of significance given the timetables for the establishing of a Government as set out in Basic Law: The Government. Indeed, “foot dragging” in putting the matter on the agenda might lead to the actual frustration of the election of a permanent Speaker of the 23rd Knesset.

11.       Moreover, the Speaker’s position that the election of a permanent Speaker is contingent upon the efforts to form a Government puts the cart before the horse. The Knesset is the sovereign. The Knesset is not “the Government’s cheerleading squad” in the vivid language of Deputy President E. Rubinstein in HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 142). Indeed, in the Israeli system of government, the Government enjoys a majority in the Knesset, and it has significant ability to influence the Knesset’s functioning thereby and by virtue of the practice of coalition discipline. But that absolutely does not mean that it can, thereby, take steps that would constitute a substantive erosion of the independence of the Knesset. Respondent 1 explained his refusal by pointing out, inter alia, that Israel’s citizens are hoping that, finally, a Government will be established after three rounds of elections. Certainly, those words correctly express the public sentiment that it would be proper that the leaders wake up and save the “ship of governance” from the dead end in which it is trapped, and this is, indeed, the immediate need, and all the more so in these corona times that have lately befallen us. But that hope – that we all share – cannot serve as a reason for the Speaker’s refusal to bring the election of a permanent Speaker to a vote, inasmuch as by doing so, he places a political consideration regarding the forming of a Government at the heart of his refusal – however it may be constituted. Such a political consideration has no place in the margin of discretion granted to him on the question of whether or not to include motions for the agenda of the Knesset plenum, and all the more so when the matter is the election of the Speaker himself.

            The fact that we are currently in a governmental transition period in which a Government that enjoys the confidence of the Knesset has not yet been formed, also reinforces this conclusion. It may be presumed that the Members of Knesset who seek to place the matter of the election of a permanent Speaker before the plenum are aware of the significance and implications of taking this step. Nevertheless, they ask, and ask again to bring the matter before the plenum. The refusal to place the election of a permanent Speaker on the agenda of the Knesset plenum leads to the result that the members of the Knesset are prevented from exercising their discretion on this matter, without regard for the results of the vote.

12.       The customary, accepted tradition of the Knesset’s work also carries weight in the present matter (HCJ 706/19 Freij v. Speaker of the Knesset [6], para. 9 of my opinion). The Knesset Legal Advisor noted that, in practice, most Knessets elected a Speaker on the day that the Knesset convened (para. 36 of the response of Respondents 1-3; and see: Rubinstein & Har-Zahav, p. 30). In this regard, it would not be superfluous to point out that one of the rationales grounding the bill for amending Basic Law: The Knesset, which applied the continuity rule to the Speaker, was that the permanent Speaker was customarily elected in close proximity to the convening of the new Knesset, and generally at the first plenary session. It was therefore decided that it did not make sense to appoint “the most veteran Knesset Member” as acting Speaker for such a short period, and it would be better to apply the continuity rule to this office, as well.

13.       The Knesset Legal Advisor further raised the fear of a “governance problem” that might ensue if a Speaker were elected at present, and it would later transpire that he was a member of the opposition. At present, the possibility of the realization of that fear is unclear. In any case, it may be presumed that whoever may be elected to serve as the permanent Speaker of the Knesset will carry out his office in a stately manner, in accordance with the law, custom and procedures established by the Knesset. That will also be the case even if the members of the party he represented will sit in the opposition. That is how Respondent 1 acted over the years, and that, in general, is how his predecessors acted in the past. Indeed, it was not without reason that Basic Law: The President of the State establishes that if the position of President of the State is vacated, and as long as a new President has not assumed office, the Speaker of the Knesset shall serve as acting President of the State (sec. 23(a) of Basic Law: The President of the State), which teaches us that the stately character of the office of Speaker of the Knesset is second only to that of the President of the State.

14.       Pursuant to the hearing held yesterday, March 22, 2020, and given the position of the Knesset Legal Advisor that we should only wait an additional, short period before bringing the matter of the election of a permanent speaker to a vote, and given the position of the Attorney General that it should be done as soon as possible, we asked for the Speaker’s position in regard to his willingness to put the matter on the agenda of the Knesset as soon as possible, and no later that Wednesday, March 25, 2020 (see our decision of March 23, 2020). The Speaker responded this evening that he is of the opinion that the intervention of this Court in the discretion of the Speaker of the Knesset to set the agenda of the plenum and bring the matter of his election to a vote is a precedent-setting intervention in the political agenda and in his discretion that is improper at this time. He noted that due to the special circumstances, he is hard pressed to state a precise date, but that he intends to place the matter on the Knesset’s agenda when the political situation becomes clear.

15.       In summary – the Speaker’s continued refusal to allow the Knesset plenum to vote on the election of a permanent Speaker undermines the foundations of the democratic process. It clearly harms the status of the Knesset as an independent branch of government and the process of governmental transition, and this all the more so as the days pass since the swearing in of the 23rd Knesset. Therefore, in these circumstances, there is no recourse but to conclude that we are concerned with one of those exceptional cases in which the intervention of this Court is required in order to prevent harm to our parliamentary system of government.

            I would therefore recommend to my colleagues that we issue an order absolute instructing the Speaker of the Knesset to convene the Knesset plenum as soon as possible for the purpose of electing a permanent Speaker for the 23rd Knesset, and no later than Wednesday, March 23, 2020.

 

Justice Neal Hendel:

            I concur.

 

Justice I. Amit:

            I concur in the decisive opinion of my colleague the President, Justice E. Hayut.

1.         The timeframe is short, and I will, therefore, only add a few words on the issue before us, which will, no doubt, give academic scholars a broad basis for discussion.

Truth be told, we are treading constitutional paths that our feet, and those of our predecessors, have not yet trodden since the establishment of the State to the present day. The new reality, perhaps anomalous, that is suddenly upon us gives rise, by its very nature, to constitutional issues that have not yet been elucidated (my opinion in HCJ 3747/19 Aviram v. Knesset [7].

            The above was stated in regard to the 21st Knesset, for which elections were held on April 9, 2019. A year has passed at a stroke and seems but a few days, and we now stand at the outset the 23rd Knesset. In the year that passed, we witnessed two other rounds of elections, but the political instability remains as it was, and has even increased. The various rifts in society have broadened, and the legal and constitutional fog has thickened. And if that were not enough, we are in the midst of the rising storm of the coronavirus, whose consequences are still too early to foresee.

            We say this as a reminder that in difficult times we must attend to the rims and spokes of the carriage so they not fall apart. Particularly in this sensitive, difficult period, we must not undermine the very existence of the system, nor deviate from the written and customary rules of the game.

2.         Israel is a parliamentary democracy that employs a proportional, national system of elections that leads to a multi-party system. After the elections, the Knesset is sworn in, and normally it immediately activates its “operating system”. The parliamentary activity is primarily regulated by the Knesset Rules of Procedure. However, in the normative fabric of the Knesset’s activity, the Rules of Procedure constitute secondary legislation (see, e.g., HCJ 1843/93 Pinchasi v. Knesset [8], 712. For more on the status of the Knesset Rules of Procedure, see: Ariel Bendor, The Constitutional Status of the Knesset Rules of Procedure, 22 Mishpatim 571, 574 (5754) (Hebrew)). Thus, the Rules of Procedure are of a lower normative status than the Knesset Law, 5754-1994 (hereinafter: the Knesset Law), which, in turn, is lower that Basic Law: The Knesset. The strength and overarching status of sec. 20(a) of Basic Law: The Knesset stand above sec. 2(b) of the Knesset Rules of Procedure, which also suffices in establishing the latest date for electing the Speaker of the Knesset (“no later than the date on which the Knesset convened for the purpose of establishing the Government”). The drafter of the Rules of Procedure allowed for postponing the election of the Speaker to this late date, but certainly did not intend to frustrate the election of the Speaker earlier than that date,

3.         In its plain meaning, democracy is “majority rule”. However, majority rule is not omnipotent. In the area of legislation, majority rule is subject to limitations deriving from the need to preserve the fundamental rights of people and citizens. In parliamentary activity, majority rule cannot trample the rights of the parliamentary minority (see, in detail, Yigal Marzel, The Constitutional Status of the Parliamentary Opposition, 38 Mishpatim 217 (2008) (Hebrew)). This is the source of the Court willingness to review even “internal” decisions of the legislature in order to protect the right of the minority, despite the judicial restraint that it exercises in regard to intervention in Knesset decisions.

            In various legal fields, the legislature protects the majority against tyranny of the minority (see, e.g., the Land Law, 5729-1969, sec. 30(b), which allows the majority owners of common property to make any decision in regard to the administration and normal use of the property, and sec. 159(a) that permits two-thirds of the apartment owners to decide upon the installation of an elevator on the common property). The present petitions entangle this Court in a situation that was not previously imagined. The political “market forces” did not do their job, and the Petitioners ask the Court to extend relief to the Parliamentary majority and protect the institutional, “core” right of the majority to realize its rights. The harm to the parliamentary majority that seeks to elect a Speaker of the Knesset who “in the fulfilment of his duties represents all the factions of the Knesset and stands at the head of the Knesset” (HCJ 2704/07 Movement for Governmental Fairness v. Knesset Committee, [9]) hereinafter: the Movement for Fairness case) constitutes harm to the fabric of democratic life and to the fundamental structure of our parliamentary regime (HCJ 652/81 Sarid v. Speaker of the Knesset [2], 204).

4.         My colleague the President quoted the Speaker in his own words, in para. 11 of her opinion, the explanation the Speaker offered for his refusal to put the election of a Speaker of the 23rd Knesset on the agenda, and in greater detail, his position that the matter would frustrate the establishment of a unity Government. Sometimes, political coalition considerations in the election, appointment or removal of some Member of Knesset or another are legitimate, internal parliamentary considerations in which this Court will not intervene (the Movement for Fairness case, para. 7). That is not so in regard to the political consideration that moved the Speaker in this case – which is contingent upon the hope for the establishment of a unity Government. This consideration is not relevant (and speaking for myself, I had difficulty understanding the causal connection between the election of a Speaker and frustrating the possibility of establishing a unity Government). The Government is one thing, and the Knesset is another. One touches upon the other, but they remain separate branches. We shall return to fundamental principles – the Government draws its vitality from the Knesset, and not the reverse. All the more so, a Government that has not yet formed cannot control the Knesset and order it to “cool its engines” until it is formed, if at all.

5.         At this point, we arrive at the fear expressed by the Knesset Legal Advisor of electing a “contrarian” Speaker, if it should transpire that his faction will be part of the opposition. But we have already learned that between certain and perhaps, certain is preferred.[2] Opposite the fear that perhaps there may be a situation in the future of a “contrarian” Speaker, stands the certainty that the present situation, in which the majority is improperly prevented from exercising its parliamentary power.

6.         The Speaker’s argument, supported by the Likud faction, is that the authority to decide upon the Knesset’s agenda and the dates of its sessions stands at the core of the Speaker’s discretion, as a clearly internal parliamentary matter that this Court should not address (and compare HCJ 4064/95 Porat v. Speaker of the Knesset [1], 179).

            I am not of that opinion. The present petitions do not concern some “regular” decision that a party wishes to bring to put on the Knesset’s agenda (on the Court’s refraining from ordering the Knesset to put certain legislative bills on its agenda, or refrain from doing so, see, for example: HCJ 1179/90 Ratz Faction v. MK Ovadia Ali [10]; and see the many examples in Rubinstein & Medina, 238 fn. 275 (6th ed. 2005)).

            The present decision is of an entirely different type. We are concerned with a “royal” decision that concerns the election of the mover and shaker of the Knesset’s activity, who conducts the parliamentary orchestra with stateliness. This Court’s intervention is required in order to allow the parliamentary majority to realize its right to elect the Speaker. From here on, the Knesset institutions will act according to their wisdom, in accordance with the rules established in the normative fabric mentioned above (Basic Law: The Knesset, The Knesset Law, and the Knesset Rules of Procedure). Our judgment is not a form of intervention, and is not, Heaven forfend, a “takeover” of the Knesset’s agenda, but merely a buttressing of the status of the Knesset as an independent branch of government, separate from the Government, and a fortiori from an interim government over the course of three rounds of elections.

 

Justice U. Vogelman:

            Section 20(a) of Basic Law: The Knesset establishes that the Knesset shall elect a Speaker from among its members. A majority of the Members of Knesset request that the Knesset be convened to elect a Speaker. Section 2(b) of the Knesset Rules of Procedure establishes the latest date for the election of a Speaker – no later than the day on which the Knesset convenes for the purpose of establishing the Government. Is the Speaker of the Knesset permitted to exercise his authority to set the agenda of the of the Knesset, by virtue of sec. 25 of the Rules of Procedure, in a manner that would prevent proceedings for the election of the Speaker, due to his view that putting the matter on the agenda before the conclusion of attempts to form a unity Government would harm the efforts to achieve that goal? Do these circumstances constitute a cause for the intervention of this Court in the exercise of the Speaker’s authority to set the agenda of the Knesset plenum? These are the questions presented for our decision.

            I concur in the detailed opinion of my colleague President E. Hayut and her conclusions.

            The criterion for judicial review of decisions of the Speaker of the Knesset are well known. As has been held: “The authority to set the agenda of the Knesset and the dates of its sessions is given to the Speaker of the Knesset. This is clearly an ‘internal parliamentary’ matter. This Court does not exercise its authority in a matter such as this except in special cases in which there is a fear of harm to the fabric of democratic life” (HCJ 4044/95 Porat v. Speaker of the Knesset [1], 179).

            The authority to set the Knesset’s agenda allows for arranging “internal parliamentary” life, while addressing the quantity and substance of the subjects before the Knesset. This authority to arrange is not authority to ignore a request by a majority of the Members of Knesset to carry out a statutory procedure required by a Basic Law due to a conceptual or political view held by the acting Speaker. In a situation in which a majority of Knesset Members request to hold an election for the office of Speaker in the framework of sec. 20(a) of Basic Law: The Knesset, the election process should be permitted to proceed without delay, and it should not be frustrated by reason of the acting Speaker’s view that electing a Speaker will harm the attempt to form a unity Government. This all the more so in circumstances of an acting Speaker who holds office by virtue of a continuity provision (and who was also not elected by the 22nd Knesset). The authority entrusted to the acting Speaker does not permit him to refrain from placing the matter of the election on the Knesset agenda, and the manner of exercising it in the said circumstances inflicts real harm to the fabric of democratic life by not permitting the majority of Knesset Members to carry out a procedure anchored in Basic Law: The Knesset, and that is required by the election of a new Knesset.

            In my opinion, as well, the intensity of this harm grounds a cause for an order absolute, as recommended by my colleague the President.

 

Deputy President H. Melcer:

1.         I concur in the opinion of my colleague the President, which – due to time constraints – constitutes “a little than can hold a lot” [Midrash Rabba 5]. Nevertheless, I would like to add a few comments, inasmuch as the petitions before us raise important, unique issues that have not been addressed previously in Israeli constitutional law.

            I will, therefore, focus, with the necessary brevity, upon the relevant principles of constitutional law and in comparative law, and by reference to a prior case that has implications for the matter before us.

            The Knesset, which is one of the three, classic branches (the legislature, the executive, and the judiciary), has properly had its status anchored in Basic Law: The Knesset, which was the first among the Basic Laws constituted by the Knesset (see: Amnon Rubinstein & Raanan Har-Zahav, Commentary on Basic Law: The Knesset (in the series Commentary on the Basic Laws, (Itzhak Zamir, ed., 1993), pp. 25-28 (hereinafter: Rubinstein & Har-Zahav) (Hebrew)).

            This is not the place for a survey of all of the functions of the Knesset and its powers, but it can be said, in general, that three primary roles were reserved to the Knesset:

  1. Primary legislation.
  2. Oversight of the functioning of the Government.
  3. Its role as constituent assembly.

(see: Rubinstein & Har-Zahav, pp. 29-30).

3.         Since the dissolution of the 20th Knesset and up to now, following the elections for the 23rd Knesset – the Knesset has barely exercised its legislative authority (not to mention its role as constituent assembly), and in practice, what it was supposed to do was to oversee the functioning of the Government, which, since the dissolution of the 20th Knesset, has become what is termed an “interim government”.

4.         The events that led to the petitions before us (and the petitions that preceded them and remain pending in HCJ 2109/20, 2135/20, and 2141/20) demonstrate the possibility of the Knesset being paralyzed, in practice, and unable to properly exercise even the said oversight authority.

            Such a state of affairs is unacceptable, inasmuch as when an “interim government” is serving, which suffers form a “democratic deficit” (inter alia, because a no-confidence motion cannot be brought against it), the oversight functions of the Knesset should intensify, if only by virtue of the general duty of confidence that the Government owes the Knesset by virtue of sec. 3 of Basic Law: The Government (see: Rivka Weill, Twilight Time: On the Authority of Caretaker Governments, 13 Mishpat UMemshal 167 (2010) (Hebrew) (hereinafter: Rivka Weill); Yigal Marzel, The Government’s Duty of Confidence to the Knesset, in Fiduciary Duties in Israeli Law (Ruth Plato Shinar & Joshua Segev, eds.) 135, 200-205 (2016) (Hebrew) (hereinafter: Yigal Marzel)).

5.         If every “interim government” suffers from “democratic deficit”, an “interim government” after elections suffers from the most severe deficit, inasmuch as the voters have had their say (see: Rivka Weill, p. 176). In such a case, the Knesset, which under sec.1 of Basic Law: The Knesset is the house of representatives of the state, should oversee the “interim government” more closely, and act in accordance with the will of the majority of its members, while respecting the rights of the minority.

6.         Therefore, the question before us is whether the acting Speaker, who holds his office only by virtue of the continuity principle under sec. 20 of Basic Law: The Knesset, is permitted – after the elections – not to put on the agenda a motion by 61 Members of Knesset to elect a new Speaker.

7.         The Speaker is of the opinion that the matter falls within the scope of his discretion to set the agenda for Knesset sessions, and he is allowed to refuse such requests of him by virtue of sec. 2(b) of the Knesset Rules of Procedure until such time as the Knesset convenes to establish a Government, as stated in sec. 13 of Basic Law: The Government (in the 22nd Knesset, this period continued though the entire term). In this regard, he argues, as a reason for the delay, that the need to form a unity government might be harmed, in his view, if a Speaker were elected now.

8.         As opposed to this, the Petitioners are of the opinion that such conduct is undemocratic, hampers the Knesset’s activity that the Speaker is supposed to direct, particularly at this special time when urgent legislative and oversight actions are required in regard to the corona problem that has befallen us, and conjecture that the current Speaker is acting on the basis of personal considerations (the fear that he might not be reelected).

9.         It would seem to me that the attempt to frustrate the will of the majority of Knesset Members to bring about the election of the Speaker immediately does not meet the legal tests.

            This is correct in principle, as explained by my colleague the President in her opinion, and my other colleagues, and is particularly correct at present, when the Knesset is required to act energetically in its legislative and oversight roles, and the Speaker is the one who must navigate its activity. It also violates the tradition of a proper transfer of governance, when necessary.

            A comparative law examination also leads to this result, as I will immediately address.

10.       In Great Britain, on the eve of Brexit, the Prime Minister sought to prorogue Parliament (from Sept. 9, 2019 to Oct. 14, 2019) so that it would not prevent him from completing the separation process from the European Union that he wished to advance (which was meant to end on Oct. 31, 2019). He therefore turned to the Queen (who holds the authority to order such a suspension), and she agreed, on the basis of the representations of the Prime Minister.

            Various opponents of that suspension, among them Members of Parliament, filed petitions against the suspension to the Supreme Court of the United Kingdom. An expanded bench of the Supreme Court held, per President Lady Hale and Deputy President Lord Reed, that there was no authority to prorogue Parliament (beyond the recess periods, which do not halt all Parliamentary business) (see: R. v. The Prime Minister; Cherry v. Advocate General for Scotland [15] (hereinafter: R. v. Prime Minister). This affair is similar to our own (although not identical, inasmuch an Arrangements Committee was appointed, and other temporary committees are meant to be established), and the reasons given there are appropriate here, as well.

11.       In the United States, impeachment proceedings are held before the Senate, and by virtue of the American Constitution, the Chief Justice presides, rather than the Vice President who usually presides over the Senate. The main reason for this is the inherent conflict of interests of the Vice President in this regard, as he has a personal interest in the outcome of the proceedings (see: Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By, 5-13 (2012); and further see my opinion in HCJ 3132/15 Yesh Atid v. Prime Minister [11]).

12.       The Knesset Legal Advisor was of the opinion that the immediate election of a Speaker might lead to a “governance problem”. Past experience would seem to demonstrate otherwise, and the example that will be presented below actually encourages the independence of the Knesset and the required checks and balances.

            Once upon a time (and as we know, in constitutional law, past events – even if they were not presented for a decision by the Court—constitute persuasive precedents):

After the death of Speaker of the Knesset Yosef Sprinzak, in January 1959 (who served as Speaker since the establishment of the Knesset), the then ruling party (Mapai) sought to elect a member of that faction, Knesset Member Beryl Locker, to replace him. The leader of the opposition at the time, Member of Knesset Menachem Begin, together with his colleague Dr. Yohanan Bader, recommended that Member of Knesset Dr. Nahum Nir-Rafalkes of the Ahdut Ha’avoda party, who was an experienced and respected parliamentary jurist (and a member of the Mapai coalition) submit his candidacy for the office for the duration of the third Knesset, and he agreed. There was a contest, and in the end, the “Nir Coalition” won with the 53 votes of Herut, The General Zionists, Ahdut Ha’avoda, Mapam, The National Religious Party, and The Israeli Communist Party, while the Mapai candidate, MK Beryl Locker, received only 41 votes (The Progressive Party, which held seven seats, abstained).

Since then, the term “Nir Coalition” has become an idiom that describes a positive phenomenon in Israeli constitutional law, because that coalition proved that it was possible to nominate a candidate who was not acceptable to the ruling party, bring about his election, and advance the independence of the Knesset (see: Danny Koren & Boaz Shapira, Coalitions: Israeli Politics: 50 Years – 100 Events, pp. 37. 257-258 (1997) (Hebrew); Uri Yizhar, Between Vision and Power: The History of the Ahdut Ha’avoda-Poalei Zion Party, pp. 270-271 (2005) (Hebrew)).

13.       Moreover, on a different note, the reason expressed by the Speaker to justify his position is given (if at all) to the person assigned to form the Government (whose faction is among the Petitioners), and not to the Speaker in his role as Speaker.

14.       In view of all the above, intervention is required here, as it was in Great Britain in R. v. Prime Minister, for without it “the fabric of democratic life” and “the fundamental structure of our parliamentary regime” will be undermined, in the sense of the exceptions set forth in HCJ 652/81 Sarid v. Speaker [2].

15.       I can but conclude with the hope that the lessons will be learned, and that we will not have to address petitions of this sort in the future.

 

            It is therefore decided as stated in the opinion of the President to make an order absolute instructing that the Speaker of the Knesset must convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23rd Knesset, and no later than Wednesday, March 25, 2020.

            Given this day, 27 Adar 5780 (March 23, 2020).

 

 

Supplementary Judgment

(March 24, 2020)

 

President E. Hayut:

Pursuant to our decision of March 22, 2020, we were today presented with an updated notice by Respondents 1-2.

As explained there, on March 23, 2020, the Knesset plenum decided upon the establishment of an Arrangements Committee. That committee convened and decided upon the establishment of a temporary Foreign Relations and Security Committee, as well as the establishment of a temporary Finance Committee, and a recommendation for establishing four additional, special committees was put before the Knesset plenum.

It was further explained that the Arrangements Committee held its first full session, using a communications and television system, and maintaining appropriate seating distance, and an opinion by the Knesset Legal Advisor on the subject of conducting debates and voting in the Knesset committees and the Knesset plenum during the period when the coronavirus restrictions are in place was appended.

            In view of the details in the updated notice, the hearing on the said subjects is no longer required, and the petitions in that regard are dismissed without an order for costs.

            Given this day, 28 Adar 5780 (March 24, 2020).

 

 

Judgment and Decision

(March 25, 2020)

 

President E. Hayut:

1.         In the partial judgment we issued on March 23, 2020, in five of the petitions in the heading, we decided to grant an order absolute instructing Respondent 1, the acting Speaker of the Knesset, to “convene the Knesset plenum as soon as possible, for the purpose of electing a permanent Speaker of the 23rd Knesset, and no later than Wednesday, March 25, 2020”.

2.         Today – March 25, 2020 – at 11:00, at the beginning of the Knesset’s plenary session, Respondent 1 gave notice that he is resigning his position and adjourned the session. Pursuant to that move, the Knesset Legal Advisor notified us that he had informed Respondent 1 that under sec. 5(a)(2) of the Knesset Rules of Procedure, his tenure will end 48 hours after his letter of resignation was placed before the Knesset or submitted to the Knesset Secretary. The Knesset Legal Advisor further pointed out in his notice to the Speaker of the Knesset that “his resignation at this time does not affect his obligation to carry out the Court’s order …”, and that “the Speaker of the Knesset informed the Knesset Legal Advisor that he does not intend to put the matter of electing a permanent Speaker of the Knesset on the agenda of the Knesset plenum today”.

            By this conduct, the Speaker of the Knesset violated the order absolute as stated in the judgment.

3.         The Petitioner in HCJ 2145/20 filed a request under the Contempt of Court Ordinance, petitioning the enforcement of the partial judgment, and to grant every remedy as the Court shall see fit (hereinafter: the contempt request). The Petitioners in HCJ 2171/20 and HCJ 2169/20 joined that request, while the Petitioner in HCJ 2144/20 filed a new petition (HCJ 2252/20 – hereinafter: the new petition) for  declaratory relief establishing that in view of the conduct of the Speaker of the Knesset and his violation of the order, his tenure ended immediately, and that under the circumstances created, sec. 5(a)(2) of the Knesset Rules of Procedure doed not apply. The Court was further asked to declare that the veteran Member of Knesset be appointed as Speaker of the Knesset until the election of a permanent Speaker, and that the Knesset plenum convene today for the purpose of deliberating the election of a permanent Speaker. In the decisions given after the submission of the contempt request and the new petition, the parties to all the petitions were asked to submit their responses to these proceedings, and after collecting all the responses received (with the exception of the Likud faction, Respondent 4 in HCJ 2144/20, which chose no to respond), we called an urgent hearing of the contempt request and the new petition, which was held this evening at 8:00. All the Respondents presented themselves, with the exception of Respondent 1, who informed the Court by means of the Knesset Legal Advisor that he wishes to suffice with the written response he submitted, and with the exception of the Likud faction, whose attorney, Advocate Halevy, informed the Court that he received notice of the hearing in a telephone call at about 6:30, and in view of the timetable set, and in view of his location when he received the notice, he would be unable to attend the hearing. The Respondents in the new petition agreed to conduct the hearing as if an order nisi had been granted.

4.         Respect for the rule of law is the cornerstone of every democratic regime, and it is proven, inter alia, by obeying judicial decisions and orders. This duty to comply is imposed upon the entire population, and the organs of government are not exempt. On the contrary, those authorities have a far greater duty to obey judicial decisions and orders, and Israeli law, in the entirety or its arrangements in this regard, adopted the accepted approach of the Common Law that grants a presumption of regularity to the organs of government. The assumption grounding that presumption is that a judgment issued against the state will be carried out appropriately (Uri Aharonson, Non-Compliance with Decisions of the High Court of Justice as an Institutional Failure: A Proposal for Judicial Enforcement, 19 Mishpat UMemshal 1271, 1285 (2016) (Hebrew)). This Court addressed the dangers inherent to the non-compliance of governmental agencies with judicial orders, stating:

A state in which the state authority takes the law into its own hands – complying with a judicial order against it if it wishes to, and ignoring it if it does not – is one in which the seeds of anarchy and mayhem are being sown, and which is developing a dangerous culture of the rule of force and arbitrariness.  A state authority is a fiduciary of the public, and “has nothing of its own” (HCJ 142/70 Shapira v. Bar Association District Committee [12], at p. 331).  As such, it should serve as a beacon for respect of the law and the rule of law.  The eyes of the public are raised to the state authorities and public office holders.  Respect for the values of law, and development of a tradition of protection of the value of the rule of law are influenced by their conduct.  Disobedience of the law and non-compliance with judgments by a state authority involve a deep moral violation not only of the formal infrastructure of the foundations of the law and the regime, but also of the core of the tradition and the culture of proper government, that serve as an example of appropriate conduct of the individual in society (HCJ 4805/07 Center for Jewish Pluralism v. Ministry of Education [13], 602-603 [para.35]).

            While we have, indeed, known instances in which governmental authorities “dragged their feet” in carrying out court orders, as well as instances in which they did not comply with such orders due to claims of difficulty in their implementation or enforcement, or due to the need to make preparations. But until today, never in the history of the State has any governmental office openly and defiantly refused to carry out a judicial order while declaring that his conscience does not allow him to comply with the judgment. That is what Respondent 1, who is one of the symbols of government (even though he currently holds his office by virtue of the continuity rule, without being elected) chose to do, and the harm of his conduct to the public interest in preserving the rule of law and compliance with judgments and judicial orders is immeasurably severe. If that is how a person of authority behaves, why should a common citizen act differently? (see and compare: HCJ 4742/97 Meretz v. Minister of Religious Affairs [14], para. 6). This question resounds in its fullest force particularly in these difficult times in which we are contending with the coronavirus outbreak, when citizens are required to comply with the unprecedented orders and restrictions imposed upon them, inter alia, by virtue of emergency regulations.

5.         We cannot be reconciled to such a situation, and an unprecedented violation of the rule of law requires unprecedented remedies. In the course of today’s hearing, the Knesset Legal Advisor noted that the legislature and the drafters of the Knesset Rules of Procedure did not foresee a situation like the one created by the resignation of Respondent 1, especially in the absence of a deputy to act in his stead. He presented a possible path according to which the lacuna in this regard in sec. 20A(c) of Basic Law: The Knesset and in the Knesset Rules of Procedure could be filled by this Court’s exercising its authority under sec. 15 of Basic Law: The Judiciary, and ordering that in order to ensure compliance with the judgment of March 23, 2020, the most veteran Member of Knesset be granted limited, defined authority as follows:

(1)        To apply to the Arrangements Committee, by virtue of sec. 19 of the Knesset Rules of Procedure, for the purpose of convening the Knesset plenum tomorrow, Thursday, March 26, 2020, even though it is not a day that the plenum convenes under the Rules of Procedure;

(2)        To set the agenda for that session, by virtue of sec. 25 of the Knesset Rules of Procedure, and include the motion for the election of a permanent Speaker of the Knesset;

(3)       To preside over that session.

            All the parties to the hearing expressed their consent to the recommended path.

6.         The Knesset Legal Advisor further noted that in preparation for the hearing, he had spoken to Member of Knesset Amir Peretz, who is the most veteran Member of Knesset, who agreed to act in accordance with the said path as may be decided, and this was also confirmed by Advocate Segev, who represents the Labor-Meretz faction in HCJ 2171/20.

7.         Therefore, we hereby grant an order as stated in para. 5, above. To avoid any doubt, we would emphasize that this order shall remain in force even if Respondent 1 decides to withdraw his resignation.

            Given this day, 29 Adar 5780 (March 25, 2020).

 

[1] The Hebrew term is mamlakhtiyut, which lacks a felicitous English equivalent.

[2] Ed: See, e.g., TB Ketubot 12b.

Abudi v. Minister of Religion

Case/docket number: 
HCJ 210/60
Date Decided: 
Monday, August 29, 1960
Decision Type: 
Original
Abstract: 

Upon the death of Chief Rabbi Herzog, an Election Committee of eight members was nominated under the Regulations to appoint and convene an Electoral Assembly. Half of the Committee was nominated by the Rabbinical Council in January 1960 and half by the Minister of Religions in June 1960. The first meeting of the Committee was convened by the Minister in July 1960, notwithstanding the claim of the Rabbinical Council that the invitation should be a joint one. In consequence, the four Council members refused to attend but subsequently one of them, Rabbi Abu Revia, relented. Thereupon the other three tendered their resignations to the Council which after considering the matter resolved to remove Rabbi Abu Revia from membership of the Committee and to replace him by another, calling upon  the other  three to withdraw  their  resignations. The latter  refused to do so but finally such refusal was accepted  as was also the refusal  of the replacement to act. In the meantime, the Committee continued to carry out its tasks with the four Ministerial members and Rabbi Abu Revia, after receiving an opinion from the Attorney­ General that neither the purported removal nor the resignations were of legal effect, since members were elected and only the Committee itself could accept resignations and effect removals, and even if they were appointed, the character of their duties required that the appointer became functus officio upon making the appointment,  without any further right of interference. The Council claimed that it was competent to remove Rabbi Abu Revia, that the other three could resign if they so desired and therefore that the Committee was not properly constituted and could not lawfully act by the remaining four members.

 

Held:     (1) That the removal of Rabbi Avu Revia was devoid of all legal effect because on appointment a member  does  not  become an agent  of the appointer, the 'umbilical cord' between  them  being cut (per Silberg J.) or because even though appointed to represent some interest, his appointment may not be revoked if he becomes a 'rebel' (per Witkon J.).'

 

(2)         (Cohn J. dissenting) The resignations took legal effect and there was no need for such resignations to be accepted by the Committee.

 

(3)         (Silberg J. dissenting) the Committee, whether consisting of five effective members (if the resignations were effective) or of eight could act by a majority of its nominal complement.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

,.

H.C. 210/60

 

RABBI SOLIMON H. ABUDI

V.

MINISTER OF RELIGIONS AND 6 OTHERS

 

H.C. 205/60

 

ABRAHAM ZEPHANIA

v.

MINISTER OF RELIGIONS AND 3 OTHERS

 

In the Supreme Court sitting as the High Court of Justice

 

Silberg J., Witkon J. and Cohn J.

 

Administrative law-Election Committee of Chief Rabbinate Council­ Character of membership-Whether members appointed or elected­ Ability to resign-Validity of removal and replacement of a member­ Competence of Committee acting without full complement-Majority required for decisions-Regulations prescribing the System of Elections or Appointment of the Rabbinical Council etc., 1936 ( as amended in 1954)­ Interpretation Ordinance.

 

Upon the death of Chief Rabbi Herzog, an Election Committee of eight members was nominated under the Regulations to appoint and convene an Electoral Assembly. Half of the Committee was nominated by the Rabbinical Council in January 1960 and half by the Minister of Religions in June 1960. The first meeting of the Committee was convened by the Minister in July 1960, notwithstanding the claim of the Rabbinical Council that the invitation should be a joint one. In consequence, the four Council members refused to attend but subsequently one of them, Rabbi Abu Revia, relented. Thereupon the other three tendered their resignations to the Council which after considering the matter resolved to remove Rabbi Abu Revia from membership of the Committee and to replace him by another, calling upon  the other  three to withdraw  their  resignations. The latter  refused to do so but finally such refusal was accepted  as was also the refusal  of the replacement to act. In the meantime, the Committee continued to carry out its tasks with the four Ministerial members and Rabbi Abu Revia, after receiving an opinion from the Attorney­ General that neither the purported removal nor the resignations were of legal effect, since members were elected and only the Committee itself could accept resignations and effect removals, and even if they were appointed, the character of their duties required that the appointer becamefunctus officio upon making the appointment,  without any further right of interference. The Council claimed that it was competent to remove Rabbi Abu Revia, that the other three could resign if they so desired and therefore that the Committee was not properly constituted and could not lawfully act by the remaining four members.

Held:                  (1) That the removal of Rabbi Avu Revia was devoid ofall legal effect

110

 

 

 
 

 

 

 

 

 

 

because on appointment a member  does  not  become an agent  of the appointer, the 'umbilical cord' between  them  being cut (per Silberg J.) or because even though appointed to represent some interest, his appointment may not be revoked if he becomes a 'rebel' (per Witkon J.).'

  1. (Cohn J. dissenting) The resignations took legal effect and there was no need for such resignations to be accepted by the Com­ mittee.
  2. (Silberg J. dissenting) the Committee, whether consisting of five effective members (if the resignations were effective) or of eight could act by a majority of its nominal complement.

 

Palestine cases referred to:

 

  1. H.C. 43/46-Adel Ibrahim El Farrah  v. Chairman  and  Members of the Electoral Committee of Khan Younis (1946) 13 P.L.R. 336.

Israel cases referred to:

  1. H.C. 3/58; 9/58-Yona Berman and others v. Minister of the Interior; "Izhar" Israel Oil Industries Ltd. v. Minister of the Interior (1958) 12 P.D. 1493 (translated at p. 29)
  2. H.C. 19/56-Eliezer Brandvein v. Governor of the Central Prison, Ram/a, and others (1956) 10 P.D. 617.
  3. H.C. 221/56-Joseph Malahi v. Chairman of the Local Council, Rosh Ha-ayin (1957) 11 P.D. 925.

In H.C. 210/60

Spaer for the petitioner.

Hausner, Attorney-General, and Ter/o, Deputy State Attorney, for the first and second respondents.

The third, fourth, fifth and seventh respondents were not rep­ resented.

Salomon and Mizrahi for the sixth respondent.

In H.C. 205/60

Bechori for the petitioner.

Hausner and Ter/o for the first and second respondents. The third respondent was not represented.

Salomon for the fourth respondent.

 

SILBERG J. The petitions before s and the answers in opposition were conceived and born in the disturbed  atmosphere  surrounding, to everyone's sorrow, the elections to the Chief Rabbinate Counci.. This is attributable in no small measure to the existence of some very

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old regulations  enacted  by  the  Mandatory  Power,  whose  usefulness is spent. These regulations were perhaps fit and appropriate for the Jewish Settlement in Palestine but are  no  longer  adapted  to  the political requirements of the State of Israel. It is to be regretted that the Israel legislature has  not as yet found  the  time and  occasion  radically to alter the election regulations and put them on  a  proper  footing  so that there is no longer any room for those coupling of names, specula- tions, forecasts and intrigues that are liable to settle around the person- alities of each of the members of the committee of eight. During the course of this judgment or at the end of it will appear the practical conclusions which we must or are liable to reach as a result of the anach­ ronistic provisions of these regulations.

  1. The curtain that was raised before us in this case revealed a scene replete with rules of law but poor in facts. Not all the "guiding spirits" were represented. Thus all that will hereafter be said in respect of the factual aspect of the matter will merely be that "relative truth" which emerges from the admissible evidence adduced in  court  by  one  or other party.
  2. The legal structure upon which the dispute between the two camps took shape is to be found in  the  regulations  which  bear  the lengthy title "Regulations prescribing the System of  Elections  or Appointment of the Rabbinical Council, Rabbinical Offices and Rabbis of Local Communities 1936" (hereafter called "the Elections Regulations") as amended on minor points in 1954 (hereafter "the  1954  amendment"). Let me here set out the provisions which touch the question before us.

"1. Not later than one month from the coming into force of these Regulations, and subsequently not later than three months prior to the expiry of the term of office of the Rab­ binical Council, the Rabbinical Council shall jointly with the General Council (Vaad Leumi) constitute an Electoral Com­ mittee of eight members for the conduct of the election of the Rabbinical Council.  One-half  of  the  number  of  members of the Electoral Committee shall be elected by the Rabbinical Council and one-half by the General Council (Vaad Leumi). The chairman and vice-chairman shall be elected from amongst the members of  the Committee;  neither shall  have a casting vote. Any layman (non-Rabbi) appointed  to serve on   the  Committee  shall  deliver  to   the  General   Council  ( Vaad Leumi) a declaration in writing confirming his positive attitude to the Jewish religion. The Committee shall pass•

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...

 

 

 
 

 

 

 

 

 

 

resolutions,by a majority of votes, and in case of an equal division of votes the Jewish Agency for Palestine shall appoint a member with a casting vote...

  1. The Electoral Committee shall address a request in writing to the Rabbinical Council to compile within one month a list of officiating Rabbis in Palestine.... The list shall be submitted to the Electoral Committee which shall nominate out of the Rabbis included therein the forty-two Rabbinical members of the Electoral Assembly for the election of the Rabbinical Council....If the list is not compiled within the prescribed period of one month, it may be drawn up by the Electoral Committee itself. The Electoral Com­ mittee shall provide each member with a certificate confirm­ ing his nomination as a member to the said Electoral As­ sembly.
  2. The Electoral Committee may call upon the General Council (Vaad Leumi) to submit within one month a list of the Local Communities and of the names of their respective delegates to the Electoral Assembly..

The General Council (Vaad Leumi) shall draw up a list of the Local Communities, shall prescribe the number  of their respective representatives, of whom the total number shall be twenty- ight, shall call upon the Local Communities concerned to nominate the prescribed number of candidates, and shall prescribe the number of Sephardic and Ashkenazic candidates respectively. The candidates of the Local Com­ munities shall be appointed by the committees of the Local Communities and each candidate shall deliver to the Com­ mittee of the Local Community concerned a declaration in writing affirming his positive attitude to the Jewish religion. Upon receipt of the names of the candidates of each Local Community, the General Council (Vaad Leumi) shall for­ ward the list to the Electoral Committee. In the event of the General Council (Vaad Leumi) failing to submit the list within the prescribed period of one month, the Electoral Committee itself may draw up the list. The Electoral Com­ mittee shall provide each member with a certificate confirm­ ing his election as a member of the Electoral Assembly for the election of the Supreme Rabbinical Council."

 

The 1954 amendment provides in Reg. 4:

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"4.      The election of the Rabbinical Council shall take place

 

.

•,

in accordance with the Elections Regulations with the follow­                                                                                                             \

 

ing  variations and adjustments:                                                                                                             '

  1.  

'

Every reference to "the General Council" (Vaad Leumi) in the Elections Regulations shall be deemed to be a reference to the Minister of Religions who shall act with the approval of the Government.

 

  1.  

'

Every reference to "the Committee of the Local Com­ munity" in the Elections Regulations shall be deemed to be a

 

reference  to   the   members  of   the  Council   of the  Local                                                                                                            J

 

'

Authority  who  shall  act  jointly  with  the  members of the                                                                                                            I Religious Council at a joint meeting to which there shall

 

be summoned members of the two bodies in equal numbers...

  1. The Jewish Agency for Palestine shall no longer have the right to appoint an additional member to the Electoral Committee.
  2. Every question or doubt which may arise in connection with the election of Rabbinical Council shall be determined by the Minister of Religions."
  1. To complete the picture and to render the incisive legal arguments of counsel more comprehensible, it is fitting to mention  two  further legal rules, one•a ministerial  regulation  and  the other a rule of case law.
  1. The Religious  Communities  (Organisation)  (Extension  of term of office of the Rabbinical Council of Israel) Regulations, 1960.

"I. Notwithstanding anything contained in Regulation 20 of the Regulations prescribing the System of Elections or Appointment of the Religious Council, Rabbinical Offices and Rabbis of Local Communities, published in the Official Gazette 1936, Supplement 2, No. 582, p. 198, the Rabbinical Council which was elected on 29 Shevat,, 5715 (21 February, 1955) shall continue in office until 26 Tammuz, 5720 (21 July, 1960) inclusive or until the date of the election of a Rabbinical Council which shall take place prior thereto, which ever_ is the earlier.

  1. These Regulations take effect on 23 Shevat, 5720 (21 February, 1960)."

 

As a result of a further extension (Official Gazette (Subordinate

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'

 

 

 

legislation) 1019 of 16.7.1960) the period of office of the Rabbinical Council was extended to 21 October, 1960.

  1. The rule laid down by this court in Berman v. Minister of the Interior (2) (hereafter called "Nahalath Yitzhak. rule").

In that case the Minister of the Interior, in accordance with sec. ;>(l) of the Municipal Corporations  Ordinance,  appointed  a  Committee of Inquiry to express its views on the question whether the district of Nahlath Yitzhak should be removed from the area of the city of Tel Aviv. The committee comprised seven persons, among them Messrs. Ariav and Tabachnik, who were respectively representatives of two important sections of the population, the non-labour element and the Histadrut. During the sittings of the committee Mr. Ariav died and the question arose whether as a result of his death the committee was competent to continue its task. In this regard, I said in my judgment (with which my respected colleague, Sussman J., entirely concurred) the following:

"6.   A second  argument  of a formal kind,  an argument

common to both counsel, was that even if the commission was  originally  competent,  it  became  disqualified  upon the

I

the death of Mr. Ariav. The respondent's answer to this was

that the provisions of sec. 37 of the Interpretation Ordinance prescribe that when an act requires to be done by a group of persons exceeding two, it can be done by a majority of them, and he relied upon the decision of the Supreme Court during the Mandate in El Farrah v. Electoral Committee of Khan Yunis (1).

 

This answer does not recommend itself to  me.  The majority of the members of  a  body  are called  a  'majority' when the members of the minority still  exist  and  not  when they have ceased to exist. Upon the death of Mr. Ariav, the remaining members became not a  majority  of  the Commis­ sion but an  incomplete,  truncated  commission,  and  a truncated commission cannot carry  out  the  function  with which the entire commission  has been  charged, particularly                                  , in the present instance in which a  special  role of representing the civic elements, was assigned to the deceased member.

Accordingly, no parallel and analogy can be drawn from the decision of the Supreme Court in the case cited."

This is the Nahlath Yitzhak rule  which  has  haunted  the Court at every stage of the present deliberations. The reason behind it, although

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not explained in that case, is that when the minority has ceased to exist, it is utterly impossible to compose one's doubt whether, if the minority had existed, it might not have succeeded in persuading the majority to accept its view, the question involved not having been canvassed in all its different aspects. This can be illustrated by taking the case of a judge­ ment given without first hearing the arguments of all parties. The rule assumes special significance when a seat is allotted to one or more meip.bers in a composite body on the ground that they possess a special "character", such as, for instance, sex, race, religion, party affiliation, intellectual capacity, ideology or outlook-a condition of  "parity" which also existed in the case of the committee before us.

  1. Now briefly and focally to relate the facts necessary for  the heart of the matter.
    1. On  19  February,  1960,  the  Rabbinical  Council   nominated as four members of the Electoral Committee, Rabbis A. Goldschmidt,

S.H. Abudi, Z. Markovitz and E. Abu Revia. These members will hereafter be called "the Council appointees." In using the term "nomi­ nated" I do not thereby hold as yet that this was an "appointment" and not an "election." I shall return and devote para. 7 of this judgment to this question.

  1. Precisely four months later, on 19 June, 1960, the Minister of Religions, with approval of the Government, nominated as the four remaining members of the committee, Rabbis Y.L. Maiman, A. Walden­ berg, Y. Kaafah and D. Shalush. These members are hereafter  called "the ministerial appointees."
  2. Trouble began at once with the convening  of  the first meeting of the eight members of the committee. The Rabbinical Council argued that the invitation had to be sent out jointly by the President of the Coun­ cil and the Minister of Religions, whilst the Minister argued to the contra­ ry that he,.and he alone, was authorised to convene the Committee, which he proceeded to do. Notices of the meeting, signed by the Minister alone, having been sent on 4 July,  1960,  the  Council  appointees,  including the said Rabbi Abu Revia, refused to attend the meeting of the Com­ mittee. Let it be said at once that on this point, so I think, the Minister and not the President of the Council was right, and that for two reasons.
  1. This trivial question of precedence  belongs without  any doubt to that class of questions which the  Minister  is empowered  to  decide by virtue of the said provisions of Reg. 4(4) of the 1954 amendment.
  2. In earlier elections, as also in the 1955 elections, the meeting

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was called by the Deputy Minister  of  Religions  and  nobody  worried or protested about it.

I fun not prepared to set aside the work of the Committee for this reason.

  1. Thereafter things came to a head.  The  dispute  between  the two "camps" grew sharper and more profound until  the  situation reached the impasse at which it remains today. We may note the following facts:

.(i) The first meeting took place on 6 July, 1960, five members attending, the four ministerial appointees and Rabbi Abu Revia. According to his contention, Rabbi Revia was convinced, after receiving a letter from the Minister (Exhibit 7), that the latter indeed was alone competent to summon the members of  the  Committee.  According  to the contention of the Qther.side, the matter sprang from the fact that in the meantime Rabbi Abu Revia had for private re sons decided to change camps. At that meeting Rabbi Maimon was chosen to .be -chairman of the Committee, to which at first all the Council appointees agreed, the fight between them and the ministerial appointees not yet having flared up.

 

  1. On 8 July, 1960, in view of the step taken by Rabbi Abu Revia, the three Council appointees, Rabbis Abudi, Goldschmidt and Mar­ kovitz, despatched a letter to the. Council (Exhibit 10) in which they asked to be released .from membership of the Electoral Committee. That letter states:-

"To our great distress and discomfiture, a serious matter has occurred which brings into question the basis of the Com:. mittee's work, at least in a public and moral sense. We have read in the newspapers that one of the Rabbinate's represent­ atives on the Committee, Rabbi Amtam Abu  Revia,  who was associated with.us in the said consultation [the reference is to the consultation in which all the Councµ appointees unanimously accepted the decision that the first meeting must take place either on the initiative of the members of the Com­ mittee themselves or on the invitation of the two bodies which had constituted the Committee] and signed the letter and was of one mind with us, and also expressed his-satisfaction at the end of our meeting with our unanimity of  views,  saying 'And Israel encamped there opposite the mountain, as one man with one mind'. Yet after all this he attended the said

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meeting without previously getting in touch with us and conducted himself as he did.

Even after the event Rabbi Abu Revia did not find it proper. to maintain any contact regarding the step he had taken, which it is not necessary to elaborate. It is superfluous to describe the seriousness of the matter  and  the  offence and consternation it has caused among the  Rabbinical  public and the grievous impression which this event with all its consequences and repercussions has made upon the community."

  1. On 10 July, 1960, the Rabbinical Council considered the request of the three rabbis and after a discussion adopted the following resolutions (Exhibit 11):-

" 1. In view of the conduct of Rabbi Abu Revia as reflected in this meeting, it was resolved to remove him from member­ ship of the Electoral Committee and to cancel his appoint­ ment.

  1. It was resolved to appoint Rabbi Mordechai Eliyahu of Jerusalem as a member of the Committee in the place of Rabbi Abu Revia. That Rabbi is accordingly appointed.
  2. In view of the above resolutions, the Chief Rabbinate Council appeals to its three representatives, Rabbis S.H. Abudi, Goldschmidt and Markovitz, that  they  withdraw their request to be released from membership of the Electoral Committee."
  1. On 14 July, 1960, the three above-mentioned rabbis addressed themselves  again  to  the  Rabbinical  Council  and  requested-   that  they should still be released.  Their  reason  for  this  was  that "the members of the Committee, representative of the Minister of Religions, do  not pay any regard to this resolution  of  the Rabbinical  Council,"  that is, the resolution about the removal of Rabbi Abu Revia and the appoint­ ment of Rabbi Eliyahu. With this request Rabbi Eliyahu associated himself. On the same day, the Council dealt with the plea of the four rabbis and decided t9 accept their resignations.
  2. In the meantime the chairman of the Committee,  Rabbi Maiman, continued with the activities of the Committee-further invitations were sent to the members thereof, the Rabbinical Council sought to obtain a list of officiating rabbis and so on-on receiving an

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opinion from the Attorney-General that neither the removal of Rabbi Abu Revia nor the resignation of the three other rabbis had any legal effect, until on 27 July, 1960 an order nisi (in File 205/60) issued from this court including an interim order to halt the committee's work. A similar order was made some few days later in another file (210/60).

To-day Mr. Zephania and Rabbi S.H. Abudi appear as litigants on one side and the Minister of Religions and the ministerial appointees and Rabbi Abu Revia on the other side-the Rabbinical Council was sum­ moned as respondent No. 7 in file 210/60 but has not appeared-and the  proceedings  revolve around  the following  two  basic questions:

  1. whether the Rabbinical Council was competent to remove Rabbi Abu Revia, and
  2. whether Rabbis Goldschmidt, Markovitz and S.H. Abudi could resign from office.

The petitioners argue that the two questions must be answered in the affirmative; the respondents on the contrary reply that  it is not so and that neither the removal nor the resignations are legally effective.

  1. Before we tum to elucidate these questions, we must attend to one argument that runs throughout the final submissions of Mr. Spaer. The argument is twofold, that ab initio the appointment of the four Council appointees was not a lawful one either from the point of view of the composition of the Council or from that of the date of appointment.

 

From the point of view of composition, the late  Chief  Rabbi Herzog passed away on 25 July, 1959 and the appointment of the mem­ bers of the Committee by the Council took place on 19 February, 1960. At that date the Rabbinical Council did not have its full complement, lacking one of its members; although some days later, as will be recalled, the council's term of office, as it then was, was extended (see below  para. 8). This extension, as expressly stated in Reg. 2 of the extending regulations, came into force only on 21 February, 1960. Thus, when the appointments were made, the Council was not complete and inevitably  in consequence of the Nahlath Yitzhak rule it was not competent  to  effect the appointment of the four Council appointees.

From the point of view of date, according to Reg. 1 of the Election Regulations the Rabbinical Council is obliged to participate in "the task of constituting" the Electoral Committee "not later than three months prior to the expiry of the term of office of the Rabbinical Coun­ cil"; on the day of appointment, 19 February, 1960, the Council's

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5 year term of office had not yet been extended and it was due to expire on 21 February, 1960. Thus, the appointment was made later than "three months before the end of the term"-it was made two days before-and obviously was null and void and there is no lawful appointment of the Council appoint es.

This double argument was put by Mr. Spaer with great restraint­ and he himself convincingly answered the first limb, as we shall see later. It merely served him as a desperate resort after all other hope had been lost, since if we accepted his argument, the very existence of the Supreme Rabbinical Council would be put in jeopardy and it was very doubtful whether his client or clients would thank him for this. There is no need to say that the Attorney-General did not rely on this argument since his main burden was to legitimate the Committee in its full composition of eight members and enable the elections to take place as soon as possible.

Nevertheless, I do not reject this argument because of the lack of importance  attached  to it  by the  parties.  I  reject  it  because it is  bad.

Mr. Spaer himself found the  conclusive  answer  to  the argument of incomplete composition in the provisions of Reg. 21 of the Elections Regulations, which provides:

"21, If a vacancy should occur in  the office of Chief  Rabbi or of member of the Rabbinical Council by reason of death or resignation of the holder of such office, the vacancy shall be filled by the candidate belonging to that community... .If there be no such candidate, and the deceased or resigned member be a Chief Rabbi, fresh elections shall be held in accordance with .these Regulations."

Now  ask  yourself,  if  a  "truncated"  Council   cannot   function, ow then will the elections tal<e place? The answer, perforce,  is  that Reg. 21 is a statutory provision which excludes the operation of the Nahlath Yitzhak rule with regard to the election of the Council and permits the latter to function forthis purpose even with seven members alone.

As to the point of time, my view is that one should not attach too much importance to the period of three months prescribed by Reg. 1.  The period was fixed for effective operation, so that the Council and the Vaad Leum( (now the Minister of Religions) could manage to implement the whole complicated procedure bound up with the Council elections. But if for any reason they could not  constitute  the  Committee  until after tµe commencement of the three months, they might do so within

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the three months period itself. Evidence for this may possibly  be found in the other "period" prescribed by these  Regulations.  I  refer  to  the one month given to the Rabbinical Council and the Committees of the Communities (now the Local Authorities Council) under Regs. 2 and 3. which provide that if the list is not complied by the Council or the com­ mittee of the community within one  month  "it  may  be drawn  up  by the Electoral Committee itself." "May be drawn up"  is the  term  used but not "must be drawn up". Hence the period prescribed is not cate­ gorically or absolutely imperative and the same applies to the period prescribed at the beginning of Reg. 1. I am not dismayed at the words "not later than" attached to the three months, since when the calculation 9ftime is not forward but backwards it is impossible not to use these three words there:

.It should be observed here that according to what emerges from the Minutes (Exhibit 1) the Council, when making the appointments, knew already about the extension that was to come. Clearly this knowledge itself does not serve to render the appointments valid but it expJains how the Council pictured to itself the carrying out of the elections.

  1. With this, I turn to the two main arguments: the validity of the removal of Rabbi Abu Revia and the resignations of the three Council appointees. The argument of the learned Attorney-General, as will be recalled, was that no legal effect attached to either the removal or the resignation and therefore the Electoral Committee ·persisted with its full complement of eight members.

On the first question, that of removal, the  Attorney-General relied upon the three following grounds:

  1. Both the Council appointees and the ministerial appointees were in truth ele<;ted and not appointed and there is no authority for removing an elected person.
  2. Even  if  they  were  appointed,  the  character  and  nature of the duties assigned to them  demanded  that  the  appointer,  whose task was complete with the appointment itself,  should  not  have  the right or capacity to interfere with the work of the Committee, and there can be no greater interference than the  possibility  itself  of  removing the  appointee.                       '
  • (c) There was no legal quorum when Rabbi Abu Revia was removed. The members of the Council according to the Law number eight; a majority is therefore five; the number who participated in the meeting dismissing the Rabbi (see Exhibit 1I) was four and not five.

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  1. The third and  last ground  does not recommend  itself to me at all. ' The late Chief Rabbi Herzog passed away on 25 July, 1959. Seven months after his death, on 23 February, 1960, the Minister of Religions made th Regulations extending retrospectively from 21 February, 1960 the term of office of the Council to 21 July, 1960. When these regulations were made the Council comprised seven and not eight members. Hence the authority to act granted to the Council was given to a seven-man Council alone, the quorum of which was obviously four and not five.
  2. Likewise I do not see any basis for the first ground. The learned Attorney-General drew his main support for this from the language adopted by the regulation-maker in Reg. I of the Elections Regulations, where it is provided that "one half of the number of members of the Electoral Committee shall be -elected by the Rabbinical Council and one half by the General Council (Vaad Leumi)". But whilst the learned Attorney-General is very precise indeed about the language of the legislator and invokes  its  materiality,  the  legislator  himself  who  is the "master mind" is not at all exact in his terms and uses in­ terchangeably two expressions. Thus In Reg. 1 itself, in the fourth sentence, he says "Any layman (non-Rabbi) appointed to serve on the Committee shall deliver to the...(Vaad Leumi) a declaration in writing confirming his positive attitude to the Jewish religion." The argument of the Attorney-General that this really means the special member appointed by the Agency in the event of an equal vote does not appeal to me at all. Why impair the position of this individual member more than that of any other member of the Committee who is not a rabbi? Is the Agency more suspect in matters of "religious qualification"

than the Local Councils?

We came across this very same phenomenon of saying one  thing and meaning another at another point in the Elections Regulations, according to the Hebrew version which is now binding by virtue of the Rabbinical  Council   (Miscellaneous   Provisions)   Law,   1955.   Thus in accordance with Reg. 3, in the language of the legislator, the non­ rabbinical representatives are nominated by .the Committees  of  the Local Communities (at present the Councils of the Local Authorities)

)ut after such appointment and their approval by the Electoral Com­ mittee, the representative receives a certificate that he was elected to the Assembly which elects the Rabbinical Council. Thus the one means the other, election is appointment, and accordingly nothing is to be deduced from the expression "shall be elected" in Reg. 1 and we may define the status of a member as if the phrase was everywhere "shall be nominated".

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10. More-much more-serious attention is to be paid to the dispute between the parties over the second ground of the Attorney-General, in which he underscores the absence of any power to remove Rabbi Abu Revia.

Yet I prefer on  this  point  the  Attorney-General's view to  that of Mr. Spaer. One can easily imagine how great would be the uproar and how debased the probity of the elections if every member of the Electoral Committee were the "personal representative" of the body which nominated him, foreswom to comply with the directions of his nominator. Mr. Spaer himself argued that the Minister of Religions had suggested to certain rabbis membership of the Electoral Committee on the condition that they undertook in writing to work for the election of a certain candidate for the office of Chief Rabbi and he regarded-and justly so-such conduct as highly tainted. I make no finding of fact at all with regard to this serious allegation. Rabbi S.H. Abudi gave evi_dence that he heard of this from Chief Rabbi Nissim who heard of it from Rabbi Kook. Rabbi Lufas gave evidence that the Minister of Religions told him that there was absolutely nothing in it. Neither the Chief Rabbi nor the Minister appeared before us and we have no possibility of deciding which is the true version. One thing, however, is clear and beyond all doubt, that tainted acts of this kind attributed by Rabbi

S.H. Abudi to the Minister of Religions, such acts and their "kith and kin" are likely to occur if a vital tie survives between appointer and appointee, and the first is permitted to give the second orders even after the appointment. This consideration alone compels the conclusion that upon appointment-as· the·Attorney-General expressed it-the "umbilical cord" should be cut  between  appointer  and  appointee, the latter becoming a being with its own life, who may and even must fulfil his task according to his personal conscience, his own inner voice and not that of others, without accepting any instructions whatsoever from the person of his appointer. This conclusion necessarily involves a denial of the power of removal, since otherwise this power would be a sword of Damocles enslaving the appointee to the will of the appointer.

Sec. 22 of the Interpretation Ordinance, however, provides that an authority empowered to appoint a person to an office may also remove him therefrom, but it adds immediately "unless a contrary intention appears." Here a contrary intention is implied by reason of the very nature of the office.

In my  opinion,  accordingly,  the  removal  of  Rabbi  Abu  Revia  is devoid of all legal effect  and  therefore  obviously  the  appointment of Rabbi Eliyahu also is nugatory.

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  1. As against this, I do not accept the contention of the Attorney­ General when he propounds the ineffectiveness of the three resignations, in spite of their being accepted by the Rabbinical Council. I have found no   warrant   for   this   extreme   proposition,   either   in   Jewish   law or in common law and Israel case law.
    1. Jewish law. The learned  Attorney-General  found support for his contention in the well known rule, the source of which is in the Tosefta of Baba Bathra, that a guardian who takes possession of the property of orphans or intermeddles in their affairs cannot resile (see Shulhan Arukh Hoshen Mishpat and Rama, Art. 290, para 23; Tur Hoshen Mishpat, Art. 290, para. 30 and Beth Joseph ad. loc.,

subpara.  18;  Magged  Mishneh   n   Rambam,   Laws  of  Inheritance, ch. 10, rule ·s, citing Rambam and Rashba) ut the matter bears no

comparison. There is no need to e;,cpand on the fact that a member of the Committee is not a "guardian" and committee matters not "orphan property." Even if the analogy is s retched to the extreme and these two. disparate things are mediated, Rabbis Goldschmidt, S.H. Abudi and Markovitz had most  certainly  not  yet  begun  to "intermeddle" in tlie Committee's affairs nor received any "property". Moreover this rule of guardianship is not an absolute rule but qualified. It allows for the resignation of the guardian for good reason, such as "if he leaves town" (see Rama, ibid. and Beth Joseph on Tur, ibid., citing Rashbatz). Thus the guardian himself can in certain circumstances free himself of his duties.

  1. Common law and Israel case law. I have examined the_ American and local sources cited to us by the Attorney-General but have not found any relevant precedent for the present matter.
  1. The reference to 19 A.L.R. (American) 37, 38, proves nothing, since it merely indicates the policy of cer:tain statutes. In thlS' country there is no law which prohibits or penalises the resignation of a public officer.
  2. The references to 19 A.L.R. 44-46, are evidence to the con­ trary. Two kinds of rights to resign a.re here stated (at the beginning of chapter 4) to exist, one absolute on the free volition of the officer, the other qualified, that is to say dependent upon the consent of the appointing authority. All the decisions mentioned deal exclusively with the question whether the officer may resign without the appointer's consent. The majority of the decisions cited permit  resignation  even  without  leave of the appointing authority. In the  case  before  us  the  resignation  of the rabbis was accepted by the Rabbinical Council.                     '

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  1. The judgment of Agranat J. In Brandvein v. Governor of the Central Prison, Ram/a (3). The Attorney-General can derive no benefit for his argument from this judgment. It is there said (at pp. 626, 627):-

"There remains, however, another consideration which supports the construction we have decided to give to sec. 16 [of the Judges' Law, 1953]. This  consideration  is  based upon the principle inherent in the common law that a person appointed or elected to serve in a public office assumes a public duty from which he cannot divest himself unless express provision exists in the enabling Law empowering him to do so, or. alternatively his voluntary resignation is accepted by those appointed over him...

This view, that a person appointed or elected to public office assumes a heavy ·public duty from which he cannot divest himself by a unilateral expression of his desire to do so etc."

A pedantic person might lay great significance upon the words "those appointed over him." The Rabbinical Council, he would argue, was not appointed over the Committee and therefore this dictum does not apply here.

I do not think that Agranat J. intended this in his judgment. The idea is that resignation may not be unilateral. It must receive the seal of those concerned with filling the. office. In this sense, the Council also is "appointed over the committee." Thus if the office falls vacant, it can and must fill it anew in accordance with sec. 20 of the Interpretation Ordinance.* I do not agree with the argument of the Attorney-General that upon the appointment of the members of the Committee the Council was functus officio and could no longer act in accordance with sec.20 as aforesaid. If it were otherwise, what should the Rabbinical Council do if one of the members it appointed dies?

  1.  
 
 



The judgment of Berinson J. in Malahi v. Chairman of the Local Council, Rosh Ha-ayin (4). This judgment is most certainly in complete contradiction to the argument advanced by the Attomey­ General. After sketching the position under English common law tegarding the right of resignation and the more lenient attitude under American case law, Berinson J. there went on to say (at p. 932):-

 

  • This section provides that a duty imposed by statute must be performed as occasion arises.

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"It appears to me that the background of public life in this country and Israel public opinion towards abandoning public office is far nearer to that of the United States than of England. We have no serious fear that, Heaven forfend, there will be a lack of persons ready to assume public office. Nor does it enter the mind of anyone that filling a public post involves any proprietory or possessory right for the person in office or that the office is some kind of burden imposed upon him by the public, which he must continue to bear so long as he is not given permission to yield it up by the appropriate authority. Such principles are completely opposed to the views which prevail among us of the character of public service and the freedom of action of the individual in his attitude towards public office, to enter upon it, to persevere in it or to give it up. Accordingly, I am of the opinion that whilst there in no

provision in the enabling Law which denies or qualifies the right of the holder of public office to resign, his right to give it up voluntarily at any time continues to exist and it is enough for

him to _express his d7sire clear!)! and unequivocally."

The learned Attorney-General sought to disting sh between permanent public office and an isolated public task such as membership of the Electoral Committee. Resignation from the first is possible with or without approval of the appointing authority, from the second, never. There is no precedent for this distinction. It is also likely to bring in its wake the injurious result that the blind, the lame and the sick will thereby be compelled to continue to serve in office whatever the sorry consequences thereof.

I have not closed  my eyes to the fact  that  in  the case  before  us,  if the resignation of the three rabbis is set aside, they still need do nothing, since their "work" will be done by others, the five members of the Com­ mittee, who constitute a majority by virtue of  the provisions  of sec. 37 of the Interpretation Ordinance.* Yet I think it would be an incorrect  and even a very dangerous legal principle if we held that a person ap­ pointed for an isolated public task could not rid himself of it even with the approval of the appointers.

Accordingly,   my  opinion  is  that  the  resignation  of  Rabbis S.H.

Abudi,  Goldschmidt  and  Markovitz,  which was accepted  by the Rab-

 

 
 

 

 

  • "Any matter, the doing of which is placed upon a number of people more than two, may, unless a contrary intention appears, be validly done by a majority of them."

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binical Council, took legal· effect and they are no longer members of  the Committee of eight.

12. What are the consequences? The situation is certainly  neither easy nor very pleasant, but such is the law and  we are not at  liberty to depart from it or to "sweeten the pill" by a  wrong construction. The committee to-day consists of five members alone, that is to say,  it is a truncated committee and as a result of the Nahlath Yitzhak rule it cannot perform its functions until the Chief Rabbinate fills the vacan­ cies by the appointment of three members. Theoretically, the Council can halt the activity of the Committee by refraining from doing anything, by not "accrediting" the three missing members. That would be "sabotage" and I hope that the Rabbinical  Council  will not follow this unseemly course. If it so conducts itself, somebody is likely to be found who will volunteer to apply to this court and seek an order against the Council for the appointment of members, and there will be further cause for indignity and indignation. I think that although the order made by this court rp.ay not actually exert pressure either upon one or upon the other "camp", a way will be found  to  right  the situation and respect for the humiliated rabbinate restored.

 

In my opinion, accordingly,  the  order  nisi  in  both  files  should be made absolute in the following terms:

 

The committee must cease from doing any  act  whatsoever until the Rabbinical Council appoints the three members lacking for the lawful number of the Committee.

 

WITKON J. Two questions  present  themselves  to  us,  one,  whether the removal of Rabbi Abu Revia from office as a member of the Electoral Committee is sound in law, and two, what are the effects and implications of the resignation of the other members of the Committee,  chosen  by the Rabbinical  Council.  In  answering  these  questions  we are obliged, I think, to place in the forefront the special character of the Committee which must be constituted by the Rabbinical Council together with the Minister of Religions in accordance  with  the  Elections  Regulations. We must remember who  are  the  constituents  and  who  the  members of this Committee, what  is the structure  of  the  Committee  and  what its functions. There is not much sense in speaking of "removal" and "resignation" as such in the void. The rule associated with one type of committee or function  does not necessarily  attach  to every other  type. It is very possible that it also does not attach  to  the  type  with  which we are concerned.

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The principal and central argument of Mr. Spaer for the petitioner was that the Electoral Committee is comprised of "representatives" of two bodies, each of which needs to elect or appoint its half. This argument was the main pillar of all his careful submissions. He regarded the four members elected to the Committee by the Religious Council as members whose task it is to represent that institution. It should, however, be noted for the sake of accuracy that the petitioner also,. Rabbi Abudi, did not himself contend that such a representative is some kind of agent who must obey the instructions of  his principal. The rabbi emphasized  that he had to act according to his conscience. But his argument was that since the regulations assign the task of constitution to these two different bodies,  the  persons  they  choose  also  reflect  the  particular   attitude of the body- which elected them. One found to be lacking expects to be removed. The main thing is that when a place falls vacant, whether because of death, removal, resignation or any other reason, the Com­ mittee becomes defective in composition and is deprived of the authority to act.

 

It appears to me that this argument loses sight of the true character of the Electoral Committee. As will be  recalled,  the  Regulations  in their original form of 1936 gave the task of constitution to the Rabbinical Council and the Vaad Leumi jointly, and in the event of deadlock between' the members chosen by these two bodies the right to decide rested in a member appointed by the Jewish  Agency.  To  my  mind, even in this dualism of the two bodies, the Council and the Vaad Leumi, it is difficult to see any recognition  of the existence of special interests. It is true that the Rabbinical Council is a rabbinical-religious institution, whilst the Vaad Leumi is a "secular" institution which represents the people in all its streams and strata. But this difference between the religious and secular approach is certainly not relevant to the differences of opinion which have now revealed themselves between the  Council and the Min1ster. However, if no hint is to be found in the old regulations for the representation of bodies possessing different attitudes, how much more so with the regulations of 1954. The latter-the handiwork of the then Minister of Religions-became currently necessary upon the establishment of the State. The Minister of Religions now took the place of the Vaad Leumi concomitantly with the abolition of  the  deciding vote which the Jewish Agency had previously possessed. Two things followed upon this amendment. The first, whilst  during  the  Mandate the law in the religious field had honoured the principle of the autonomy of the institutions of the Jewish Settlement in the country,  now  under the State the order of things was put upon a national basis. Thus the

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matter of the Rabbinate is one for the public as a whole. Secondly, the maker of the new regulations apparently had no fear of divisions and differences of opinion among those elected by the Council and those elected by the Minister along "party" lines and thus no longer saw need to provide means for resolving any stalemate among the members of the Committee. If he still left 'the authority to choose one-half of the members of the Committee in the hands of the Rabbinical  Council,  he certainly did so out of the consideration that this institution was more likely to choose prominent people who could be trusted to carry out the task. By the same token also, such persons would be of the same mind as the Council. But I do not see, nor have I heard from counsel. for the petitioner, what special material standpoint there could be for the Council to be represented by its members on the·Electoral Committee as against the second body, the Minister of Religions. I do not think that the latter who made the 1954 regulations·thought at the time to further any particular attitude-if not  to  say  "interest"-that  the Council members, as distinguished from his own, would be intended to represent. In this regard, the position of the Council is unlike that of political parties, professional organisations, communities and the like, when they send representatives to inquiry committees and similar bodies, although it behoves even such "representatives" to display independence of mind and not merely to march to orders. I therefore think that the whole basic approach to be inferred from Mr. Spaer's argument was mistaken from the outset.

 

Against this background, one must consider the validity of the removal. It is clear to me that neither the Rabbinical Council nor the Minister of Religions may remove  a  member  chosen  by  them  when he loses grace or ceases to be a person of confidence and trust. I see no need here to deal with all the occasions which may justify removal. In this judgment I limit myself to the circumstances which served as the occasion for the removal of Rabbi  Abu  Revia,  as these were disclosed to us. Indeed I' think that these circumstances were disclosed sufficiently for their purpose even without the addition of the explanations which could have been advanced  by the Rabbinical  Council itself. The matter is clear to all that this member's attendance at the Committee's meeting summoned by the Minister of Religions alone, despite his previous agreement not to attend  nor  to  engage-in  further  consultations  with the other members, meant in the eyes of the Council and its other nominees a deviation and a breach of the discipline which in their view he owed. They declared him a "rebel". This is certainly not a ground for his removal, and that a fortiori. For if even a number of an elected body,

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who serves as representative of the party interest of his electors, as for instance a party member in the Knesset or on a local council or any other body, is not under the domination of his electors and they may not control how he discharges his mandate, how much more so a member of the kind here under consideration. There is certainly nothing wrong for such a member to receive guidance from the body which chose him and to act in its spirit. But from this it is not to be concluded that when a member throws off the yoke of discipline, those who sent him may revoke his mission. Once chosen, he sits in his own right and ceases to be subject to the governance of those who chose him. Why does this rule

_apply doubly to a member of the Electoral Committee? Because from the very structure and function of the Committee it follows that a11 its activity is confined to one end and must be carried out within a fixed time. Not only that the election itselfis tied to a limited period, but the function is an isolated one and does not continue indefinitely. We would reach a state of chaos if the electing body were at liberty to go back on its choice and elect another at any time, so long as the Committee had not com­ pleted its work. In accordance with what sec. 22 of the Interpretation Ordinance states, a contrary intention is here implied  from  the  very task and the mode of election involved.

 

I now pass to the question of the resignations and I must confess that this question worried me not a little. We have heard much from counsel of both parties about the right or the absence of the right of a person to resign from an office to which he has been elected or appointed. At the end of it all, it seems to me that no such person is to be denied the right to resign, at least when his resignation is acceptable to the body from which he accepted office. Even on the strictest view, a person may resign with the consent of his principal. I have not overlooked the argument of the respondents that upon  the election  of its members the Council completed its work and thenceforth the Council had no contact or connection with them. On the other hand and without laying down any firm rule oflaw, since differences are revealed in the observa­ tions of Agranat J. in the Brandvein case (3) and those of Berinson J. in the Malahi case (4), I see the difficulty in accepting the view of the Attorney-General that a person elected fo be a member of the Electoral Committee cannot resign whatever the circumstances. It seems to me that the question is quite another one-and it is the  only  question which interests us here: what are the implications of this "resignation" and what is its effect regarding the continuance of the work of the Electoral Committee. The Attorney-General and Mr. Salomon relied upon sec. 37 of the Interpretation Ordinance and contended that the

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Committee may continue to function, whilst Mr. Spaer seized upon what was said in the matter of Nahlath Yitzhak in the Berman case (2) and contended that upon the resignation of three of its members the Com­ mittee was nothing but a "truncated" Committee deprived of the legal basis for fulfilling its task.

In my opinion, no assistance is to be had from the Nahlath Yitzhak case. I agree for the purposes of the present case that a committee constituted, wholly or partly, of representatives of different interests would be disqualified from functioning if the place of one such represen­ tative were filled for extraneous reasons, and particularly if as against him an adherent of the opposing interest continued to be a member,  but in two respects what happened in the Nahlath Yitzhak matter  differs from the present case. The first difference is that there, in the Nahlath Yitzhak matter, one of the committee members appointed to represent a special interest, had died, whilst in our case the Committee was "trun­ cated" with the  express  intention  of  obstructing  its  further  activity, for thus and not otherwise must we construe the resignations. I do not think at all that what was said in the Nahlath Yitzhak matter, in con­ sequence of the death of one of the committee members, would  have been said, if that member or the body whose affairs he needed to represent had indicated their refusal to participate in the committee's deliberations. The second and main difference is that the Electoral Committee is not comprised of representatives of different interests.  I  have  already spoken about this above and there is no need to expand on it.

If the committee is not to be disqualified in reliance upon the Nahlath Yitzhak case, is  its  work  valid  in  accordance  with  the  rule in sec. 37 of the Interpretation Ordinance? This rule empowers the majority to do everything which must be done by a number of persons more than two. Here Mr. Spaer argues that this rule does not  apply except where every member of the body is in being, but if the body is deficient because of the death or resignation ofa member, there is nothing in the rule to regularise any  act done  by  the  remaining  members  of the body, who constitute a majority. He did not draw our  attention  to any precedent one way or the other,  which could  uphold  his argument or contradict it. From the point of view of its consequences, I hesitate greatly in accepting the argument  in  a  case  such  as  the  one  before us, since there is nothing in law to enable  a  single  member  to vitiate the work of a committee and silence it completely by sending in his resignation. This would involve the total domination by the minority of the majority. Again, I see the difficulties likely to be created in the event of a member's  resignation or the divestment of his qualificatio_n. If such

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a member was assigned to represent a vital interest, it is possible that by his  absence  the  committee  would  be  "truncated"  and  then  the  rule of the Nahlath Yitzhak matter would apply. But if he did not represent any special outlook and attitude and  was  indistinguishable  from  the rest of his colleagues and his place fell vacant because of death or resigna­ tion, is it the intention of sec. 37 that the committee should carry on without him? I have considered the matter and in the end have reached the conclusion that indeed so it follows from the plain meaning of the terms of this provision. But more than this, in the present case we are dealing with the resignation of three members who took this step  with the express intent that they should no longer be  associated  with  the work of the Committee. They washed their hands of the wholt; business. Is there any difference between such "resignation" and ceasing to have any connection with the work  of  tlie Committee?  In my  view there is no  real difference. In the face of a  resignation,  whose  whole purpose   is to.set at nought the intention of the rule-maker and render it nugatory, one cannot say that a c9ntrary intention is implied in  these  regulations. In the absence of any provision to the contrary for the case of resignation of this kind, it is not to be assumed that the rule-maker meant them to be thwarted.

It follows therefore in my opinion that the remaining  members  of the Committee, who are the majority, are competent to continue with their work. Like my respected colleagues, I also am not happy with this conclusion that leaves to the five what the law entrusted to eight. But I annot see any escape from this except in one of two ways. It is possible for the Council now to re-elect three members to make up the number. lfit does so, I also think that the time factor will not stand in the way. If the Council does not take this course, the Government could consider whether thi is not a case for putting into effect the provisions of sec. 23 of the Interpretation Ordinance, under which it has the authority to direct that others shall replace those who have resigned.

 

I advise to discharge the orders nisi.

 

COHN J. I am of the same opinion as my respected colleagues that the removal of Rabbi Abu Revia from membership of the Electoral Com­ mittee is of no effect. To the reasons given therefor by Silberg J., I wish to add that an express rule' exists in Common law under which a body that participates in the constitution of another body (as the Rabbinical Council here participated in forming the Electoral Committee) may not deny a member of the constituted body his membership therein even

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if it has originally appointed> him for that purpose (see Halsbury (Hail­ sham edn.), Vol. 8, p. 32, para. 46). As for·sec. 22 of the Interpretation Ordinance, upon which Mr. Spaer placed reliance, and according to which the authority empowered to appoint a person is also empowered to remove him from office, this provision is conditional upon there being no indication to the contrary in the enactment which grants the power of appointment. The intention  implied in  the Elections  Regulations is that upon the appointment ofthememb'ers of the Electoral Committee, the link ceases, that umbilical cord so to speak, mentioned by my colleague Silberg J. in his judgment, is cut between the appointer and the appointed, in such a manner that assures the appointed person not only the freedom of voting and selection but also freedom from the threat of compulsory unseating; for without freedom from such threat, there can be no freedom at all of thought, voting and choice.

. I also concur, with respect, in the view of my colleague, Silberg J., that neither the laws of guardianship and charity overseers in Jewish law nor the Common law rules relating to Crown service can tell us anything in the least about the legal effect of the "resignation" of the petitioner and his colleagues from membership in tl:J.e Electoral Com­ mittee. This alone is to be said-even according to my colleagues-that once the link is broken etween the Rabbinical Council, the appointer, and the petitioner and his friends, the appointed, it s,eems to me that the Rabbinical Council is no longer competent to accept their resignation­ in as far as it may be necessary for someone to accept the resignations before it can become effective; it is evident that the resignations need to be accepted by the body from which the restgnations are made and not by the body which appointed them.

For me, however, the question of the effect of the resignation  as such does not call for decision in this case and therefore I will  not express any opinion either upon the right for a person to resign from a public duty office which he voluntarily and after thought took upon him­ self, or upon the nature, compass and application of the law decided in the Berman case, (2) according to which a truncated committee is not a committee. In my view, the Electoral Committee here was lawfully appointed and lawfully exists and as long as it carries on its work by a majority of its members it acts lawfully (sec. 37 of the Interpretation Ordinance).

 

It is quite true that when a person is appointed for any task, and that also at his will or wish, he is not compelled to carry it out-except in those cases in which this court will intervene and issue a mandatory

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order. In the absence of such a court order,  the person  on whom  the task falls may at his wish faithfully discharge it and at his desire be in­ dolent, negligent or remiss. Negligence and remissness may sometimes result from psychological motives, whether controllable or not; some­ times they may result from cool calculation or an emotional reaction to a slight upon one's pride or in obedience to the demand of one's conscience. Such negligence and remissness manifest themselves in many ways; sometimes the person vociferously proclaims his conscience and its effects upon him; sometimes he endeavours to justify his feebleness; sometimes he passes  his conduct  over in  silence as if  everything  was as it should be; sometimes he conceals his default by feverish  activity. As to the lack of effort itself in fulfilling the task, it is immaterial what the motives are and what form it takes. And so long as the court is not asked to enquire into his conduct and the.reasons themselves, I would not be prepared to judge the measure of justification or necessity or the extent of the fault and lack of responsibility in such conduct or such reasons.

 

So also is it in the case before us. For reasons and motives of their own the petitioner and his fellows refuse to carry out the task put upon them with their consent to act as members of the Electoral Committee and properly participate in its work. I shall express no opinion as to the nature of these reasons and motives and I shall assume in favour of the petitioner and his colleagues that these are well considered and powerful and that indeed it is conscience which prevent them from filling the office which they undertook. Since there is no petition before the court to order them to do so, nothing remains for us but to leave them in the state of passivity which they have chosen.

 

Unless a person is given the power to choose for himself whether to act or not to act, he has no authority to force his decision upon another. It is patently clear that in order to attain any political or public purpose, the act or omission of an individual is in most cases insufficient. Success is conditional upon carrying others along with him. If the nonfeasance, directly or indirectly, results because the person does not desire to or cannot acquiesce in the outcome originally anticipated from the act had it been performed not necessarily by him alone but by others with him, it is natural that he should try with all his power to render it undone by others as well, since otherwise he will not achieve his aim. Such com­ pulsion of others is always wrong even if exercised by means apparently quite lawful and legitimate. At least there is no law or judge in this country to set the seal upon any use of methods which prima facie seem

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lawful and legitimate but the purpose of which is to force an action upon a public body or to impede it in the fulfilment of its function.   ·

These words are uttered with regard to the term "resignation" which the petitioner and his co-members adopted in announcing their decision to divest themselves of the burden of the Electoral Committee. If such resignation means that each of them has rid himself of the trouble of attending the meetings of the Committee or of raising his hand in voting, or of any interest in or attention to or preoccupation with the deliberations of the Committee and its activities, so be it. It is his right and no one can deny it to him. But if such resignation means amputating the Committee and killing it altogether and forcing the compulsory removal of the remaining members1 this court must come to the rescue so that none of the conspirators succeed in rendering the law impossible of proper implementation. Such a conspiracy may indeed succeed if a half or a majority of the members of the Committee who desire its demise so contrive. But it follows that at least a majority of the members of the Committee are needed to carry out the plan and in such a case the active minority will be frustrated by the obstructive majority. As long, however, as the activists are the majority and the others the minority, it is not to be given to the latter to thwart the majority.

I regard the announcement of the petitioner and his fellows to the Rabbinical Council (Exhibit 10), which he repeated in evidence before us, as a notice by agents to their principal that in consequence of the conduct of Rabbi Abu Revia  they were not prepared  to sit  with  him  and therefore could not  participate  in  the  work  of  the  Committee. This communication the Rabbinical Council found acceptable and the Council-I  fear,  without   any   power-released   them   from   the   duty of taking part in  the Committee's  work. In  this  regard, in my opinion,  it is immaterial what language was employed in  the  announcement which was made. The legal position does not differ whether you  call their ceasing to act "resignation" or "strike" or  "self  proscription"  or any other term expressive of taking a vow of self  denial.  Even  after such announcement and without the active participation of the petitioner and his friends the Electoral Committee continues to exist in its original composition.

Accordingly there is in my opinion no occasion for appointing others as members of the Committee in place of the petitioner and his friends. Even if there were occasion or need for this, it is clear  to  me  that the Government could not appoint  them  by  virtue  of  sec.  23 of the Interpretation Ordinance, as Mr. Salomon tried to argue before us.

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The provisions of that section apply only when a statutory duty or power is imposed upon the person who is prevented from carrying out his task or whose office falls vacant, but not when the power or duty is that of a committee or body of which that person is only one member.

In view of the conclusion I have reached, which falls within the category of a decision on the facts, there is no need also to decide the question of law whether sec. 37 of the Interpretation Ordinance deals only with a majority of the members of a body when all of them exist, even though they do not  in fact join in doing  the act concerned,  or  whether it deals with a majority of members in any event, either when they all exist or when some  are lacking. This distinction  is not  of importance for the matter before us, since even if sec. 37 were construed restrictively, its provisions would apply here where all the members of the Committee are alive and in office. But because the distinction has in practice occupied the great codifiers, and out of respect for tlie parties who appear before us and counsel who have cited Jewish law as well, I have given much

_thought to the relevant Jewish law and shall briefly consider it.

There is no difference of opinion among the jurists that in judicial acts the majority decision of judges or arbitrators is not followed unless all were present at the hearing. Even if one out of ten or one out of a hundred is removed, the structure will collapse.-

"since the majority prevails only when it has reached its decision after all have considered the question and not if some are ab.sent. For it may be said that had the latter been present, they might have shown some reason for reversing the view agreed upon by the majority and the majority might have adopted it....This is obvious for judicial purposes and it ap­ plies likewise to arbitrations. There is never a majority unless it emerges from a body as a totality after due deliberation. But a mere majority out of a whole which considers or assesses or implements a matter by itself and not in consultation with the total body or not in its presence can decide nothing."

(Responsa of Ritba, 85; so also Responsa of Rashba cited in Tur Hoshen Mishpat, 9, 13.)

The learned Attorney-General argued that the functions of the Electoral Committee are quasi-judicial and thereby sought to give some reason why its members may not resign. I do 'not accept this argument since were I to regard our Committee as quasi-judicial, even I also would hold that there is no majority unless all are present and participate

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in the hearings. For the distinctive feature of a judicial or quasi-judicial act is to judge between contending parties and not as the Attorney­ General tried to argue the independent exercise of discretion. The latter attends judicial and administrative activities but the exercise of dis­ cretion required for electoral purposes does not exceed in extent, in­ dependence and nature that required for an administrative act upon which the rights of  others depend.                                             ·

There is an additional reason for this rule which has been laid down for judicial acts. The right of the defendant is to be judged by each member of the competent body and not simply by a majority of them. "For it is said 'Thou shalt not follow a majority for evil'. I infer that I may follow them for good. If so, why is it said 'To incline after the majority' ? To teach that the majority to incline after for good is not the one to incline after for evil, since for good a majority of one suffices..." (Mishnah Sanhedrin, 1, 6).

This is applied in our Jewish sources not only  to judicial  but also  to quasi-judicial acts, to those which involve a benefit for one person  and a loss for another, as with the imposition of taxation and compulsory payments (Responsa MaHarik, Principle 1), in which  the  majority  is not important unless all were present at one and the same time; and it is only where a different practice has taken root that regulations may be made by majority decision without being sanctioned in plenum (Responsa of Mabit, Hoshen Mishpat, 264).

Although I do not know of any precedent for the election of a Chief Rabbi by a majority of voters not all in session, the question itself arose and created bitter dispute in connection with the restoration of Semichah [appointment and ordination] to the office of  judge in the fourth decade of the sixteenth century. The rabbis of Safed finally decided to act in reliance on a ruling by Maimonides in his commentary on Mishnah Sanhedrin, that the scholars of Palestine can ordain judges

·although they themselves are not ordained, and they accordingly ordained their leader, Rabbi Jacob Berab. The ordination  certificate being despatched to the rabbis of Jerusalem for them to join in the ordina­ tion and in turn receive ordination from the newly ordained rabbi, the leader of the Jerusalem rabbis, Levi Ibn Habib, rejected  it  and argued not only that there was  no warrant  to  revive ordination  but  also that the decision of the Safed rabbis was invalid since although the latter formed a majority of the Palestinian scholars, their majority  decision was reached in the absence of all and although  it is true that the views  of the majority are binding this only  applies in  the case of  a  majority of a complete totality. In the words of Habib,

137 I

 

"It is a positive commandment of the Torah to follow the majority as long as the consensus of the majority ensues from deliberations in which all participate... . But when the consensus of the majority arises without deliberation in which all participate it is no consensus, for had the majority heard the arguments of the minority, they might have acknowledged their force and changed their minds.... In the present matter, it would have been fitting for the majority view to prevail if we had all met together and discussed the matter face to face, or at least consulted through corre­ spondence...and since neither was done,  your consensus of view cannot be regarded as that of a majority."

 

These observations and others of greater length were published by Habib in his Kontres HaSemichah, whereupon  Berab  did  not hold his hand and published a pamphlet of his own in reply. Pamphlets then passed between the parties three times, in the course of which mutual recriminations waxed bitter. At first Berab merely answered Habib's observations that the consensus of opinion of the Safed rabbis was a nullity by observing "Woe to the ears that have heard this" but in his second pamphlet he went over to a personal attack not only by saying that Habib's pamphlet demonstrated that the latter was an ignoramus but by mentioning Habib's past as a Christian when a Portuguese Maranno and contrasting his own clear past, his piety and great learning. Habib stormed back by accusing his opponent of overweening pride and defamation and by suggesting that the Safed Rabbis though numer­ ous were of inferior endowment, whilst the Jerusalem rabbis though few in number were men of high capacity; and what was the worth of a majority if the best were not among them? He also accused the Safed scholars of affronting the Jerusalem scholars and of discourtesy-for had they been deferential how could they have thought of presenting the Jerusalem rabbis with a fait accompli? I only mention these mutual calumnies and accusations to show that there is a precedent for this kind of thing and not to denigrate the reputation of either Rabbi Jacob Berab or Rabbi Levi ibn Habib. For our present purpose, it is fitting  to note that in his reply to Habib's objections, Berab held that a question such as the ordination of judges does not require either consultations or judicial enquiry but simply ordination by the person authorised thereto and thus there was no need for a majority in full session but any majority was competent to act. Special weight attaches to this decision in view of the fact that the great pupil of Berab, Rabbi Joseph Karo, ordained him and also in turn received ordination from his teacher

138

 

 

 
 

 

 

 

 

 

 

 

when the latter was compelled to leave the country and go to Damascus because of Government displeasure.

It was later ruled that in non-judicial matters where it was necessary "to safeguard religious matters when people are urging a departure from sctj.ptural behest and it is essential to set up a fence...all acknowledge that the power lies in a majority  as such to make such  amendments as they deem the situation to require for good public ordering" (Responsa of Maharik, Root 180). And I dare to think that from the point of view of the litigants before  us this formulation  attaches  to  the  question of the election of the Rabbinical Council of present day Israel. It is a religious affair and this generation urges departure from the scriptures, and if the majority as such does not act nothing will be done.

In addition, it is decided law that where a regulation exists that the majority view is to be followed-as it exists in the Election Regulations in respect of the Electoral Committee-"let what the majority decide even without the participation of all be valid and subsisting" (Responsa of Rashdam, Yoreh Deah, 151). In another Responsum  authority is  to be found for the view that if after agreement has been reached on a matter "some die and some move away, the agreement persists" and whatever is done thereafter is valid and subsisting,  although  some are absent (Responsa of Mabit, op. cit.) and in fact there is no alternative, since otherwise a community will never agree upon anything if the power remains in the individual to nullify the agreement  (Responsa of Rosh, Rule 6, Article 5).

In my opinion the orders nisi should be discharged.

 

Orders nisi discharged. Judgment  given on August  29, 1960.

 

 

 

 

 

 

 

 

 

 

 

 

 

139

Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset

Case/docket number: 
EA 1/65
Date Decided: 
Saturday, October 23, 1965
Decision Type: 
Appellate
Abstract: 

 

The Central Elections Committee for the Sixth Knesset refused to confirm the “Socialists’ List” because “this list of candidates is unlawful as its initiators deny the territorial integrity of the State of Israel and its very existence.” The material that was before the Committee clearly reflected that most of the candidates on the relevant list were members of the “El Ard” movement whose purposes were described by the Israeli Supreme Court as completely and absolutely denying the existence of the State of Israel in general, and its existence within its borders in particular.

 

In denying the appeal, the Supreme Court held:

 

A.            It is irrelevant that the rest of the candidates on the “Socialists’ List” were not active or were not known to be members of the “El Ard” movement, because once they decided to run on one list and cast their lot with members of “El Ard”, they are presumed to have first considered with whom they are running and to what end.

 

B.            According to Israel’s Declaration of Independence, not only is the State of Israel a sovereign, independent, freedom-loving state characterized by a regime of the rule of the people, but it is also founded as “a Jewish state in the Land of Israel.” The act of founding the State was first and foremost a result of the Jewish people’s natural and historical right to live as any nation, independently in its sovereign state, which also constituted an expression of the realization of the age-old aspiration for the redemption of Israel.

 

C.            (1)                          At this stage in the s