Disqualifying candidates and lists for the Knesset violates one of the most fundamental democratic rights, the right to vote and to be elected. Therefore, it must be done with the utmost care, judgment and objectivity. Who can reject candidates and lists for the Knesset, and on what is the criteria? IDI experts answer these questions.
What is the legal basis for disqualifying Knesset lists and candidates?
Section 7A of Basic Law: The Knesset, stipulates that “a candidate list may not participate in elections to the Knesset, and an individual may not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, explicitly 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 by a terrorist organization against the State of Israel.”
What is the procedure for disqualifying a Knesset list or candidate?
The Central Elections Committee (CEC) may decide by majority vote, to disqualify a list or a candidate. Any individual or group may petition the CEC to disqualify a list; a request to disqualify a candidate must be endorsed by one-third of the members of the CEC. The CEC is a political entity, with factions included in it represented in proportion to the number of seats they hold in the outgoing Knesset. The CEC is chaired by a Supreme Court justice, and its decision to disqualify a candidate must be confirmed by the Supreme Court; a decision to disqualify or not disqualify a list may be appealed to the Supreme Court.
Why is the disqualification of lists and candidates problematic?
Barring an individual or list from running for the Knesset infringes on one of the most basic democratic rights: the right to vote and to be elected. Citing an individual’s statements as grounds for disqualification also violates the freedom of expression. This is why, over the years, there have been very few cases in which disqualifications were ultimately ratified and enforced. The problem is exacerbated by the fact that the committee that makes the decision (subject to approval by the court) is political by its very nature. In many cases, its deliberations deteriorate into political grandstanding, with political interests rather than factual or legal questions determining the members’ vote on a case—all the more so, in the period right before an election.
What can justify disqualification of a candidate or a list?
The rationale for the disqualification of a candidate or a list is that democracy has a right to defend itself against those who would exploit democratic processes in order to undermine democratic values. This option exists in countries in which democracy has collapsed under the assault of political parties that have subverted it, such as in Germany.
When was a list first disqualified in Israel?
The first time a Knesset list was disqualified was in 1965, even though the CEC lacked legal authority to do so at the time. The ״Socialist List״ was disqualified, because many of its candidates were members of Al Ard, an Arab nationalist group that had been outlawed, on the grounds that it was opposed to the existence of Israel. In Yardor v. the CEC, the Supreme Court ratified the ban in a dramatic ruling, which legalized a serious violation of a fundamental right, despite the absence of explicit legal authorization to do so.
How did the legislation evolve after that?
Yardor ran counter to the general tenor of court rulings that lists should be allowed to run for the Knesset at almost any cost. In 1984, when the CEC disqualified the Kach party, the Supreme Court reversed the decision on the grounds that the Yardor ruling should not be applied in the absence of explicit legal language to justify the disqualification. In reaction to this decision, Section 7A was added to the Basic Law: The Knesset, explicitly authorizing the CEC to disqualify lists.
Since then, after Kach was disqualified in 1988 and again in 1992 (along with the Kahana Hai list), the Supreme Court has consistently blocked the many cases in which the CEC voted to disqualify lists and candidates, including the Balad party, Arab MKs Azmi Bishara, Ahmad Tibi, and Hanin Zuabi, and Baruch Marzel. Since 2003, the Court has overturned every CEC disqualification.
The consistent judicial line has been that Section 7A should be interpreted as narrowly as possible and invoked only in the most extreme cases, when there is a critical mass of evidence demonstrating an intention to achieve goals banned by the law. In addition, the unlawful goal must be a dominant element of the list’s or candidate’s platform, and not marginal to it.
How did the Court rule in two cases before the elections to the 21st and 22nd Knessets?
For the first time since the law was amended to authorize the disqualification of individual candidates (in 2002), in two rulings on members of the Otzma Yehudit party, the Court ruled that candidates could be barred from running, even though the CEC had not disqualified them. This constituted a double precedent: This was the first time that a specific candidate was disqualified, and the first time that the Court ruled against a candidate who had been approved by the CEC. In the case of Michael Ben-Ari, the court accepted the Attorney General’s position, and ruled that incitement to racism was an essential part of Ben Ari’s program. The appellants presented the court with videos that Ben-Ari had uploaded to the internet on a regular basis, in which he called for stripping Arab citizens of Israel of their rights and systematically and deliberately degrading them. The court ruled that Ben-Ari “systematically incites hatred against the Arab population, and that there are important pieces of evidence that include humiliating and extreme statements persisting throughout a two-year period.” On the other hand, the court refused to disqualify Itamar Ben-Gvir because, unlike in the case of Ben-Ari, it had not been presented with a strong and unambiguous evidentiary basis for doing so.
The court reversed the CEC’s disqualification of Ofer Kassif (from the Hadash party). It refused to accept a few newspaper articles (in which he wrote that that he was opposed to Israel as a Jewish state) as the critical mass required to disqualify him, and in particular-- cited his statements to the CEC and to the court, that he was committed to his party’s platform, which does recognize Israel as a state in which the Jewish people enjoys self-determination.
In advance of the elections to the 22nd Knesset, the court ruled against the candidacies of Baruch Marzel and Bentzi Gopstein, on the basis of the latter’s actions and statements inciting to racism against the Arab citizens of Israel.
The court attributed special significance to the fact that many items submitted as evidence, were published during the pre-election period, and expressed its belief that Gopstein intended to implement his platform. Similar evidence was introduced against Marzel, who claimed that all the statements were just “slips of the tongue.” The court held against him the fact that the issue of his candidacy had already come before it twice in the past, and each time he had declared that he had recanted—but continued to promote these ideas later on. Hence, the court was not inclined to accept his new claim that he had changed his views.
The court rejected the request to disqualify the Joint List (as had the CEC), on the grounds that there was no significant difference between the allegations against it and those that it had rejected when permitting Ra’am-Balad and Ofer Kassif to run in the previous elections. However, in the case of Hiba Yazbek, Chief Justice Esther Hayut commented, that the extremely disturbing evidence taken from her Facebook page that had been presented as evidence, could be interpreted—for lack of an adequate explanation by Yazbek—as identification with and support for various hostile bodies, who take part in an armed struggle against Israel including the terrorist Samir Kuntar. However, because it was not Yazbek’s own candidacy, but rather, the entire list that had been challenged, the court did not intervene in the CEC’s decision to approve the Joint List. An application to disqualify Yazbek from running to the 23rd Knesset is currently pending before the CEC.
What reform is recommended with regard to the authority to disqualify Knesset candidates and lists?
A system in which a political committee decides whether candidates should be disqualified is problematic; ipso facto, it introduces irrelevant considerations into a decision that should be made on the basis of evidence and legal arguments. We are witnessing the same ritual of campaign propaganda in the CEC, prior to every Knesset election. The process should be completely withdrawn from the committee and handed over to an independent quasi-judicial body, subject to review by the Supreme Court. This is the arrangement in most countries: either there no possibility of disqualifying a list on substantive grounds related to its goals and actions; or, where there is-- the authority to do so is assigned to an independent body, such as the Supreme Court or the Constitution Court.