Case Number

EA 2/84 , EA 3/84

Date Decided

5-15-1985

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The Knesset Elections Law establishes a Central Elections Committee, to which are submitted the various proposed candidates lists that wish to participate in the Knesset elections. The Committee reviews the lists to ascertain that they conform to the requirements of the Law, approves such lists as comply and disqualifies any list that does not comply, supervises the conduct of the election campaign and the elections themselves, rules on various issues that arise during the campaign and during the elections and certifies the results of the voting. The Committee is comprised of representatives of the party lists that are represented in the outgoing Knesset. It is chaired by a Justice of the Supreme Court.

The Central Elections Committee for the election of the eleventh Knesset disqualified two party lists. One was the "Kach" list, which it disqualified for the reason that it advocates racist and anti-democratic principles, that it openly supports terrorist acts, that it seeks to foment enmity and hatred between different segments of the population and that its goals and objectives negate the fundamentals of the democratic regime that prevails in the country.

The Committee also disqualified the "Progressive List for Peace" from participating in the elections on the ground that it contained within it subversive elements and that certain key members of the list conducted themselves in a manner that identified with enemies of the State.

Sitting in a panel of five Justices, the Supreme Court allowed these appeals and reversed the Committee's decisions. The lead opinion was written by the President of the court, Justice Shamgar. He held:

1. There are no provisions in the statute concerning any limitations on the qualifications of a candidates list based on the list's beliefs and goals. Although the Yeredor case (see infra) established that the Committee could disqualify a list that sought to achieve the dissolution of the State, statutes and rulings that limit fundamental rights should be construed narrowly. One should not deduce from that precedent that there is room to expand the grounds for disqualifying a list to include less extreme circumstances.

2. Applying the standards set forth in Yeredor to the "Kach" list, one must ask whether this is a body that seeks to prejudice the very existence of the State, whether the party group was declared - before its disqualification - to be an illegal organization, according to statute, or whether it was proved before the Committee or before a court that its goals include the total negation of the State. The distortions in its opinions, the outrage that they arouse and the desire to disassociate oneself from any approval of these ideas, even indirectly, are not sufficient legal grounds to disqualify the list once it has satisfied the statute's formal requirements.

3. No evidence was presented to the Committee from which it might have concluded that the "Progressive List for Peace" meets the criteria of the Yeredor case. The Committee received a statement from the Defense Minister's spokesman to the effect that the Minister was convinced, on the evidence placed before him, that the list contained subversive elements. Although the information placed before a statutory authority need not meet the standards of evidence that apply in court, it is not sufficient that the Committee rely on information that is entirely in the hands of other parties. In this case, the Committee de facto delegated its authority to the Minister of Defense, and it had no right to do so. The classified nature of the information does not relieve a quasi-judicial body, such as the Committee, from its duty to examine the data itself and make up its own mind.

The Deputy president of the court, Justice Ben-Porat, concurred in the decision on the ground that, in her view, the Elections Law does not empower the Committee to consider the question whether a list is worthy of participating in the elections. All the Committee is empowered to do is to examine whether the proposed list meets the formal requirements set forth in the Law. Justice Ben-Porat expressed her agreement with the opinion of the dissenting Justice in the Yeredor case.

Justice Elon expressed the opinion that the Elections Law requires the Committee to approve a list once it determines that the list satisfies the requirements set forth in the statute. The Committee does not have any discretion to disqualify a list for other reasons. He supported the decision in the Yeredor case as based on a principle that stands above the ordinary canons of interpretation, namely, that the Law is given to live thereby, not to die thereby. Participation in the elections to the Knesset in order to destroy the State and the Knesset are self-contradictory. Society has a natural right to defend itself. But this is a onetime exception that cannot be applied to other grounds for disqualification of a list. He then surveyed the Jewish sources, in law and thought, that encourage intellectual freedom and the exchange of ideas. He rejected the "racist" ideas of the "Kach" list as contrary to Jewish values and to the Biblical conception that all persons are created in the image of God.

Justice Barak was of the opinion that the Committee has discretion to disqualify a list if there is a danger that its approval might undermine the very existence of the State or its democratic character. The proper balance between values that conflict with each other is to be found in the degree of probability that the particular harm sought to be prevented will occur. Nothing in the platform of the "Progressive List for Peace" demonstrates that the list seeks to destroy the State or to injure its democratic character. The "Kach" list's ideas are contrary to the general ideals and to the Jewish values on which the State is founded. But, so long as it has not been proved that there is a reasonable possibility of injury to the State's existence or to its democratic character, the list must be approved.

Justice Bejski distinguished between negation of the very existence of the State and injury to its democratic character. The necessity for judicial legislation in the case of the former does not justify extending the Yeredor ruling to the latter situation as well, especially when one considers the basically political nature of the issue. The Committee is a partisan political body. If it were given the power to disqualify a list on the ground that it undermines the democratic character of the regime, without statutory definitions and restraints, some lists might be disqualified for reasons of narrow partisan interests, as they happen to appear at a particular moment to a majority of the Committee. Based on the "reasonable possibility" test advocated by Justice Barak, the "Kach" list endangers the democratic character of the State. The reason it is not to be disqualified is that there is no legal authority to do so.

Keywords

Constitutional Law -- Freedom of Expression, Constitutional Law -- Judicial Review, Constitutional Law -- Legislation, Jewish Law

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