Israel’s pressing ‘bench’ issues

The debilitating deadlock in which the Jewish state’s political system is mired is in large measure the result of judicial disregard—or at least distortion—of the law.

A gavel. Credit: Wikimedia Commons.
A gavel. Credit: Wikimedia Commons.
Martin Sherman
Martin Sherman
Martin Sherman spent seven years in operational capacities in the Israeli defense establishment. He is the founder of the Israel Institute for Strategic Studies (IISS), a member of the Habithonistim-Israel Defense & Security Forum (IDSF) research team, and a participant in the Israel Victory Project.

“Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded … [T]he court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda.”—Professor Ran Hirschl, “Towards Juristocracy,” Harvard University Press, 2004.

“The [Israeli] public is further losing its faith in … the legal system, with only 36 percent of the Jewish public expressing confidence in the courts.” — “Public’s faith in Israel’s justice system continues to plummet,” Haaretz, Aug. 15, 2013.

As the Israeli political system flounders in a corrosive crisis, caught in an almost inconceivable impasse—in which the formation of a Zionist coalition hinges on embracing blatantly anti-Zionist factions—some profound soul-searching is clearly called for.

Without a doubt, one of the most vexing questions for any concerned citizen is—or at least, should be—how this situation was ever allowed to come about in the first place. After all, as I have underscored previously (see here and here), it is plainly and painfully clear that these dominantly Arab, anti-Zionist lists should have been precluded from participation in the elections in Israel.

This is not some fanciful right-wing delusion, but rather an unequivocal conclusion that arises from the explicit letter of one of Israel’s quasi-constitutional “Basic Laws.”

Thus, Clause 7a of Basic Law: Knesset states: “A list of candidates shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include … negation of the existence of the State of Israel as a Jewish and democratic state.”

There are four dominantly Arab factions in today’s Knesset. Three of them—the Communist Hadash, the ultra-Arab nationalist Balad, and the radical Ta’al—have run together in a political alliance known as the Joint List, while the Islamist Ra’am, previously part of the Joint List, is currently running as an independent faction.

Without exception, these factions make explicit reference to their goal of ending the dominant Jewish character of Israel and transforming it into a “state of all its citizens,” including support for measures that would make Israel indefensible militarily and unsustainable demographically as a Jewish state. The same is true for a good number of prominent members of these lists.

This is a clear and incontrovertible contravention of not only the spirit, but of the express letter, of the Basic Law: Knesset, which, ipso facto, should be sufficient grounds for the disqualification of these lists from the Knesset elections.

It is important to note that the disqualification called for has nothing to do with the ethnicity of the Arab voters, but the enmity of the Arab parties, and does not involve the right of individual Arab citizens to vote in elections, but the right of (anti-Zionist) Arab political organizations to participate in them.

However, time and again, whenever disqualification of one of these lists—and/or certain candidates thereof—have been brought before the Supreme Court, it has ruled against disqualification and permitted their participation, while ruling to bar participation of numerous Jewish candidates and/or lists, usually on far more nebulous charges.

Indeed, Clause 7a was inserted into Basic Law: Knesset in 1985, for the express purpose of barring the participation of anti-Zionist lists in the elections—as well as that of lists/candidates who engaged in nefarious misdeeds, such as promoting racism and/or supporting armed aggression/terror against Israel.

Since then, the Supreme Court has ruled 10 times to permit the participation of overtly anti-Zionist Arab lists or candidates—and never once to preclude their participation.

These judicial decisions fly in the face of common sense, the letter of the law and the spirit of the Declaration of Independence, the country’s founding document, which affirms (and reaffirms) Israel as the nation state of the Jews. (Interestingly—and significantly—the Declaration of Independence cites the word “Jew”/“Jewish” 24 times, virtually all in reference (whether direct or oblique) to the right to national sovereignty, and only twice to “equal”/“equality,” and then only in the context of civic, not national, rights.)

It is this kind of perverse judicial behavior and blatant judicial disregard/distortion of the law that has gravely eroded trust in the Israeli justice system.

It raises trenchant and troubling questions—questions to which the Israeli public deserves answers.

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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