Case Number

EDA 1806/19

Date Decided

7-18-2019

Decision Type

Appellate

Document Type

Full Opinion

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.

Keywords

Constitutional Law -- Basic Law: The Knesset, Constitutional Law -- Government, Constitutional Law -- State of Emergency and National Security, Elections, Zionism

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