(March 18, 2019 / JNS)
The Supreme Court’s ruling on Sunday hampers the right to freedom of expression, the life blood of any democracy. Disqualifying a candidate from the right, while approving candidates from the left, also severely damages the public’s trust in the fairness of the legal process.
These matters are so simple: that one is left with the impression that the Supreme Court justices aren’t interested in critical thought, which although isn’t complex is certainly vital for the implementation of justice. What we saw on Sunday was the politicization of the legal system.
The judges’ power stems from the citizens who designated them as their arbiters. But the public didn’t ask them to determine the nature of our political discourse nor to shield gentle souls from harsh words. Israeli democracy is strong and vibrant, and if it can handle the extremists from the left, it can certainly handle Michael Ben-Ari.
Clause 7A of Basic Law: The Knesset, according to which Ben-Ari was barred and the extremists from the left were approved, stipulates that candidates or Knesset lists should be disqualified “if the objects or actions of the list or the actions of the person, expressly or by implication, include one of the following: negation of the existence of the State of Israel as a Jewish and democratic state; incitement to racism; support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.”
In my view, this clause is entirely problematic, aside from the last part.
A democracy has to permit the expression of harsh, even extreme, sentiments. The more we allow free discourse, the less violence we will encounter on the fringes. The only exception is “support of armed struggle.” But when did we start being afraid of words? The Jewish nation is a nation of texts, and some of these texts are severe and extreme. We’ve never been afraid of contending with harsh expressions, and we never silenced opinions in places of Torah study. Prohibiting the opinions (not including calls to violence) of political rivals is a denial of our people’s own polemic traditions.
But things are worse than they seem. This ruling is based on a double standard and unequal application of the law. How is Ben-Ari disqualified while Balad and Ofer Cassif are approved, when their views fundamentally negate Israel as a Jewish a democratic state?! It’s enough to see the appeals against the nation-state law, filed by the Arab parties, to understand that they don’t recognize the law’s fundamental assumptions: “The land of Israel” is Palestine; it isn’t the historical homeland of the Jews, who are a religion, not a nation.
This vantage point makes it impossible to talk about the “Jewish people” realizing “the natural, cultural, religious and historical right to self-determination.” Among all the nations of the world, only we don’t have the right to national self-determination?! What is this if not anti-Semitic racism and the negation of Israel’s existence as a Jewish and democratic state?
And yet, those who harbor this view should still be allowed to run for Knesset. However, if the Supreme Court evokes Clause 7A, how can it then ignore the countless statements and actions against Israel’s existence as Jewish and democratic and only address Ben-Ari’s comments?
Racism isn’t a tool to wield against one person and not another. Hatred between groups mired in political and military conflict is not pure racism. Indeed, there is no master race seeking the subjugation or destruction of an inferior race. Would we accuse the British of racism for hating the Germans in World War II? Would the court disqualify Psalms 137:8-9: “Daughter of Babylon, doomed to destruction, happy is the one who repays you according to what you have done to us. How blessed will be the one who seizes and dashes your little ones against the rock.”
Dror Eydar has been appointed Israeli ambassador to Italy.