New Bill Proposed Expands the Criteria for Disqualification of Electoral Lists
A new bill proposes to amend Basic Law: The Knesset, by expanding the criteria that would disqualify candidates and lists from participating in elections based on minimal and even past expressions, interpreted as support for armed struggle of an enemy state or terrorist organization. In addition, the Supreme Court would be removed from the decision process according to this proposal.
Photo by Chaim Goldberg/Flash90
Under current legislation, section 7(a) of the Basic Law: The Knesset rules that candidate lists and individual candidates shall not participate in Knesset elections if their goals or actions, including expressions that are voiced explicitly or implicitly, meet one or more of the following three criteria: denying the right to exist of Israel as Jewish and democratic state; incitement to racism; and support for the armed struggle of an enemy state or of a terrorist organization against the State of Israel.
It is the Central Elections Committee that decides, by vote, whether to disqualify a particular list or candidate. Anyone may submit a request to disqualify a list, while requests to disqualify candidates must be signed by three Committee members. The Central Elections Committee is a political body comprising representatives of the factions serving in the Knesset, based on their relative share of Knesset seats, and headed by a Supreme Court justice.
Over the years, Supreme Court rulings have created a body of case law that restricts the interpretation of the criteria listed in section 7(a), with the aim of strongly protecting the right to vote and the right to stand for election. This interpretation demands a very high threshold of proof for disqualification to be enacted. The constant approach throughout this case law is that the criteria in section 7(a) should be very narrowly interpreted, and deployed only in “highly extreme” cases, when there is a critical mass of clear, persuasive, and unequivocal evidence of activity over an extended period of time. Similarly, proof is required of intention to implement in practice the goals that are banned by law. The illegal goal must form a dominant part of the agenda of the list or candidate, and may not be a marginal issue.[1]
[2]
All the substantive amendments proposed in the bill relate solely to the criterion of “support for the armed struggle of an enemy state or of a terrorist organization against the State of Israel,” and not to the other criteria. According to the amendments:
- Expressions of sympathy or support that are not made on an ongoing basis will also be considered “support” for armed struggle. This represents legislation to bypass the Supreme Court ruling, which as stated required a high and significant level of proof of continuing support, rather than single expressions. According to the bill, even if such an expression was made in the distant past, for example, and no longer represents the candidate’s views, it would still meet this criterion.
- The criterion will be expanded to include support for “a single attack,” and not just for a terrorist organization overall.
- Changing the status of the Supreme Court with regard to the process of disqualifying a candidate: Currently, the Court approves the disqualification process, and in practice is a participant in the decision. According to the amendment, it will be possible to appeal to the Supreme Court against a decision, but the Court will not be an inherent part of the disqualification process.
It should be remembered that section 7(a) represents an exception to one of the most important basic rights in a democracy—the right to vote and to stand for election. Any infringement on this right must be as limited as possible, and must be properly justified. The rationale underpinning it must be one of prevention rather than punishment, and must relate to a serious danger with a high likelihood of occurrence.[3] Disqualification from standing for election cannot be justified in the case of upsetting, infuriating, or even outrageous views expressed by a list or candidate.
The most problematic change proposed in the bill in this context is the attempt to set a legal presumption that support that is not constantly expressed over time is to be considered support of armed struggle. This amendment seeks to bypass the Supreme Court ruling that requires clear and unequivocal proof of actions or statements over an extended period, rather than on singular occasions—evidence indicating that this is a well-developed world view that forms part of the central agenda of the list or the candidate. This continued pattern of behavior is required as an indication of significant danger. The proposed amendment would mean that a single expressed view, or a handful of expressions, even if made in the past and no longer relevant, and even if made when the candidate was not a public figure, would be sufficient for disqualification on the grounds of support for terrorism. It should be noted that we are not speaking of someone convicted of supporting terrorism; rather, the Central Elections Committee would be able to decide on this issue itself.
This amendment represents an attempt to remove the Supreme Court from the process of approving a disqualification, and strengthening the status of the Central Elections Committee, which is essentially a political body. It should be remembered that giving a committee that reflects a political majority the power to make rulings, as a quasi-judicial body, on the existence of sufficient evidence to meet the disqualification criteria, is in itself extremely problematic. The Committee members have political interests that may well guide them in their decision-making more than the evidence itself. Furthermore, disqualifications are made just weeks before elections are held, a time when every action by politicians is judged in terms of political interests, public relations, and populism. In effect, this is a case of the fox guarding the henhouse. Thus, strengthening the status of the Committee and weakening that of the Supreme Court undermines oversight over this process, which forms a fundamental part of democracy (including procedural democracy)—the holding of free elections.
Any change to the rules of the game, and particularly those relating to elections—the beating heart of the democratic process—must be made with the utmost caution, and changes that constitute an attempt by the ruling coalition to benefit itself or harm its rivals should be treated with considerable suspicion. This is especially true during a period of democratic retreat. The bill would appear to represent an attempt by the coalition to extend its rule by giving itself more power to disqualify lists that would not support the future government after the next elections.
It should be remembered that the criterion relating to “support for the armed struggle of an enemy state or of a terrorist organization against the State of Israel” is a problematic and asymmetric condition to begin with. The concluding words, “against the State of Israel,” serve to exempt support for Jewish terror against Palestinians. For example, supporting the actions of Baruch Goldstein would not be considered “support for terrorism” under the terms of section 7(a) (though it would meet this description as defined in the Counter-Terrorism Law).
Thus, the amendment is directed in a one-sided manner against Arab parties and candidates. It does not, for example, lower the evidential bar for the criterion of incitement to racism (on the basis of which Jewish candidates for the Knesset have been disqualified in a handful of cases), nor does it seek to bypass the interpretation of the Supreme Court with regard to this issue.
Even without the proposed amendment, the Palestinian Arab minority in Israel already suffers from systematic curbs to its freedom of expression and of protest, to the level of systemic silencing. This same minority also suffers from continuing delegitimization that would deny its status as a partner of equal value and with equal rights in Israeli democracy and its various institutions. The ultimate test of a democracy is its treatment of its stable minority groups. In addition to the constitutional, ethical, and moral implications, erecting barriers to the most basic forms of political participation would likely have negative social consequences and reduce voter turnout in the Arab public.
The bill is one of various proposals put forward by the current coalition aimed at undermining Israeli democracy—from those first tabled in January 2023 that included giving absolute power to the coalitionary majority in legislative matters and bypassing the Supreme Court, handing the government absolute control over the appointment of judges to the courts, canceling the reasonableness clause, and more; to the ongoing efforts, step by step, to weaken all the mechanisms for oversight of the ruling government, including proposals to curb freedom of expression, bring the police under direct control of ministers and their representatives, take control of the civil service by appointing cronies and getting rid of professional public servants, rein in the free press, completely undermine the system of legal counsel to the government, and more. The coalition is seeking more and more power for itself, while destroying independent and professional oversight mechanisms. The current proposal also seeks to entrench and grow the power of the coalition, by making it easier for it to disqualify Knesset electoral lists and candidates.
[1] See, for example, Election Confirmation 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi, ruling 47(4), 1, 14 (2003); Election Appeal 561/09 Balad v. Central Elections Committee (March 7, 2011).
[2] The bill has passed a preliminary reading, and is now set to be discussed in the Knesset House Committee ahead of a first reading in the Knesset plenum.
[3] Mordechai Kremnitzer and Adi Gal, Disqualification of electoral lists and candidates—defending democracy, or damaging it? Israel Democracy Institute, 2019.