In the last five years, Israel has held three sets of national elections: 1999, 2001, and now in 2003. With all the destabilizing effects of frequent elections and terms of office that are cut short, the upcoming elections on January 28th, 2003 are turning out to be fraught with the greatest danger to the Israeli political system and Israeli democracy in general. The Likud Party is under investigation for inflating its party membership by allegedly signing up residents of Israel who are not eligible to vote in party or general elections, buying votes (especially by criminal sources), and corruption in its primary elections, which determine the list of candidates for the Knesset. The Labor Party stands accused of running candidates who are under investigation for arranging illegal campaign funds in the 1999 elections. But it was the decision of the Central Elections Committee to disqualify two Arab Knesset members from running again, and to disqualify one entire Arab party that set the alarm bells ringing.
Alarmed by the essence of the decision, the process (or lack of due process) through which it was taken, and its ramifications for Israeli democracy, Dr. Arye Carmon, President of the Israel Democracy Institute, called upon political scientists, journalists, law professors, businessmen, attorneys, judges, and public figures from Jewish and Arab sectors of the population to discuss this situation and make their voices and concern heard by the country’s decision-makers.
A little background is in order here. The Central Elections Committee (CEC) is a legally-constituted body whose members represent all factions of the Knesset and whose chairman is a former justice of the Supreme Court. The main function of the committee is to arrange for the smooth functioning of the elections - from making sure that candidates and party lists possess all the legal credentials for membership in the Knesset to the nuts and bolts of properly equipped, located, and manned polling booths, updating the registry of voters, counting the votes, and publicizing the results.
The anti-democratic decision by the current CEC to disqualify Arab MKs Ahmed Tibi and Azmi Bishara and Bishara’s party, Balad, was ostensibly based on Section 7A of Basic Law: The Knesset, passed as part of the 1992 Parties Law. This would disqualify a person or party from participation in the Knesset for any of the following actions:
- The rejection of Israel’s right to exist as a Jewish and democratic state.
- Incitement to racism.
- Support for the armed struggle of enemy states or terrorist organizations against the State of Israel.
- A reasonable basis to conclude that the party will be used for illegal activities.
Members of the CEC who favored disqualifying MKs Bishara and Tibi and the Balad Party claimed that these two MKs support the terrorism perpetrated by the Palestinians and have said as much in public speeches. In the case of MK Bishara, they claimed that he expressed support of the armed struggle against Israel by its enemies when he gave a speech before the Syrian parliament. Furthermore, the CEC members felt that Bishara’s Balad Party denies Israel’s right to exist as a Jewish state by advocating that Israel be “a state of all its citizens.”
What made the process so anti-democratic, aside from interpretation of the substantive issues, was that the CEC members did not decide based on evidence, but according to their preconceived, political stances. The Chair, Justice Cheshin, vigorously opposed the decision on the merits and the process. As provided for by law, MKs Bishara and Tibi appealed to the High Court of Justice, which overturned the CEC’s decision.
The Israel Democracy Institute’s emergency meeting was held after the decision by the CEC and before the decision of the Court. While a sigh of relief was heard when the Court upheld the principles of freedom of speech and the freedom to form and elect political parties and stand for election, the very possibility that narrow political interests (especially if those interests become dictated by criminal elements that gain control of political parties) might legally disqualify their opposition and/or deny segments of the population representation in the Knesset demands immediate remedy.
Opening the emergency meeting, Dr. Carmon pointed out that while democracies need to protect themselves from elements that use freedoms to undermine the state, the choice and use of instruments need to be assessed for their ramifications. He felt that it is very much in Israel’s interest to refrain from any action that would discourage its Arab citizens from voting in the upcoming elections. He also warned that while we have a tendency to opt for quick fixes, not all our problems can be solved by Election Day, January 28th.
Four presentations were then made, after which the floor was opened to comments. Presentations were given by: Hebrew University political science professor Shlomo Avineri, Supreme Court Justice Emeritus Tzvi Zamir, Hebrew University law professors and senior fellows of the Israel Democracy Institute Mordechai Kremnitzer and Ruth Gavison.
Professor Shlomo Avineri noted three things he felt weigh heavily on the proper conduct of Israeli democracy in the CEC’s decision:
- While the CEC can decide anything it wants, its decisions should be in the national interest and its deliberations should be carried on respectfully. Neither of these was the case.
- The passage of Section 7A in 1992 was meant to disqualify the Kach Party because of its racist platform. Professor Avineri thinks that was a mistake: that the disqualification of political parties should not be through law but through the political process. He felt that passing Section 7A opened the way for the Israeli Right to avoid dealing with the roots and effects on Israeli society of extremism in its camp. In his opinion, Section 7A is draconian and should be revoked.
- After the elections, there needs to be basic reform of the political parties in order to rebuild them and prevent avenues for corruption. This would include making changes in the Parties Law requiring that political parties have a constitution; party institutions be set by that constitution; parties be comprised of active, involved, due-paying members and not allow irregulars to vote in primaries; and minimal membership periods be required before a member can become a candidate for any party office.
On the unrelated but important issue of whether a “conscientious objector” has the right to refuse to serve in the territories, Professor Avineri felt strongly that the High Court of Justice was right not to allow any type of refusal to serve. To do so would open the door for the right to refuse to evacuate settlements in the event of such a government decision.
Justice Emeritus Zamir took issue with the subsection of 7A that allows for disqualification because a person or party does not accept the definition of the state as a Jewish state. He felt that it is anti-democratic to disqualify a party that advocates peaceful change. He was also very concerned by the disrespectful language used by members of the CEC towards the Chair, Justice Cheshin. He felt that this was dangerous because it indicated very deep disrespect for the rule-of-law, the judiciary, and the institutions of the state. He believes that we must take immediate measures to change the political culture here in Israel, otherwise it will produce very bitter fruit.
Justice Zamir said that while, like any other right, the right to be elected can be limited, the limits themselves must be bound by minimal recourse to limitation; the law allowing limitation must be just and narrow; implementation should be carried out by a worthy body - and not a political one. Furthermore, he felt that disqualification is a legal matter and should be made by a legal body.
Professor Kremnitzer pointed out that using Section 7A, a person or party could be disqualified for disagreeing with the Law of Return, which gives all Jews who come to live in Israel automatic citizenship. This law, commonly accepted as Israel’s raison d’être, has an anti-democratic aspect; however, this aspect is not publicly discussed. He said that the world hasn’t yet noticed that there are some things we can’t talk about in our democracy, and if they were to notice, our democracy rating would go down in world opinion. We seem not to have internalized how important an economic and political asset our democracy is. He further objected to the subsection of Section 7A that would make support of armed struggle against Israel a reason for disqualification. While on the face of it, it seems simple and straightforward, Professor Kremnitzer noted that occupation itself breeds terror, and if someone is against the occupation, it could be interpreted as supporting terror, thereby allowing for his or her disqualification.
On the specific matter of MK Bishara’s disqualification, he was most disturbed that the General Security Services got involved in examining Bishara’s ideas: to what degree, in their opinion, Bishara accepts Israel as the Jewish State. Furthermore, the “evidence” presented against Bishara was hearsay - not a recording of Bishara’s actual words.
Professor Gavison disagreed with Professor Avineri, recognizing a need for the possibility of disqualification. While she felt that Section 7A should not be revoked, she was concerned about what type of authority should decide whether or not the law should be rescinded: only politicians? only the judiciary? a combination of the two? Since disqualification is a political/ethical question of the first degree, both the political and judicial authorities should be solidly behind such a decision. And, the decision should be well-argued.