Justice Dorit Beinisch, the President of the Supreme Court, wrote the majority opinion for the Court. The decision opened with an overview of past Supreme Court rulings on the disqualification of political parties on the grounds of the principle of "Defensive Democracy," which allows democracies to place limits on the right of free speech and on the right to elect and be elected, in order to ensure the existence of the state and its democratic nature. [3] Justice Beinisch also referred to Article 7A of the Basic Law: The Knesset, which reflects this principle.
Justice Beinisch first outlined the normative framework for disqualification of parties and commented that the balance between the right to be elected and the security needs of the State struck in Article 7A of the Basic Law: The Knesset must be applied in accordance with the developments in Israel. In her opinion, the situation in Israel in 2009 was very different from the situation in 1965, when the "Defensive Democracy" principle was introduced by the Supreme Court, since at that point, Israel was still a young State fighting for its existence. [4] Justice Beinisch noted that the Supreme Court repeatedly held that "Defensive Democracy" is an extreme measure that should only be used under very narrow circumstances, and even then, on the basis of very strict legal and factual grounds. In order to determine that a party's goals or activities are faulty to an extent that would justify barring it from running in Knesset elections, the Elections Committee and the Court must be convinced that a threat to democracy arises from dominant elements that serve as the party's foundations, rather than on esoteric features that have no effect on the party's main ideology. Secondly, these dominant disqualifying goals must be clearly deduced from the Party's statements and activities. Thirdly, the goals must be practical and the party must act in an attempt to implement them. In addition, such actions must not be sporadic but rather repetitive in nature. Lastly, the evidence presented in favor of the disqualification of the party must be persuasive, clear, and unambiguous.
The three conditions identified by Beinisch apply equally to cases involving alleged challenges to the Jewish and democratic identity of the states and to cases involving allegations of support for the armed struggle against the State of Israel.
With regard to the conduct of the hearings before the Elections Committee, Justice Beinisch held that despite the grave allegations leveled against the two parties, the Committee failed to conduct a serious and thorough discussion of the evidence presented and did not consider the relevant standards that had been stipulated by the Supreme Court. She further noted that the evidence submitted to the Committee was not clear and compelling. (Beinish embraced the opinion of the Attorney General that the evidence presented to the Committee was even weaker than the evidence presented in a previous case in 2002, which the Court also deemed insufficient to warrant disqualification.) Nevertheless, Justice Beinisch noted that some of the evidence about Balad that had been submitted raised concerns and could serve as the basis of a claim that the party supports the armed struggle, were it to be supported by additional evidence. (The evidence demonstrated that Balad did have some connections to the Popular Front for the Liberation of Palestine and that some Balad members had participated in a memorial ceremony for the former PFLP leader George Habash.)
Thus, Justice Beinisch held that the concrete evidence that had been presented was not sufficient to cross the strict threshold needed to disqualify Balad and Raam-Taal.
Justice Edmond Eliyahu Levy, who wrote a dissenting opinion, held that although the right to be elected is one of the most important rights in the democratic regime, this right is not absolute and the democratic state is allowed to protect itself from those who wish to use the democratic process in order to destroy it. This delicate balance is expressed in Article 7A of the Basic Law: The Knesset. According to Justice Levy, the evidence presented with regard to Balad did not leave any room for doubt that this is a case in which exceptional circumstances of this nature come into play. In particular, he noted that there had been some significant changes since the Court had rejected a previous disqualification of Balad in 2002, especially the fact that allegations of active support of terrorism were raised against MK Azmi Bishara—the leader of Balad—who had fled Israel in the meantime.