This week a panel of 11 Supreme Court justices will render one of its most crucial judgments ever concerning the shape of Israeli democracy. The Court has been asked to review the decision of the Central Elections Committee (CEC) barring Arab legislators Ahmed Tibi and Azmi Bishara and Bishara’s Balad list from participating in the upcoming election. The Court will also review the CEC decision to permit the candidacy of former Kach activist Baruch Marzel on the Herut list.
The CEC voted to ban Bishara and to permit Marzel’s candidacy, in opposition to the position of its chairman Justice Michael Cheshin. Political and legal commentators were quick to assail the CEC vote as an outrage. Former Supreme Court Justice Yitzchak Zamir told Yediot Aharanot,
"It is a scandal that the committee members voted contrary to the chairman’s views. . . . It is unacceptable that they would ignore his view of legal matters and decide according political interests."
Dan Izenberg in an "Analysis" piece in the Jerusalem Post
made the same point, writing that "the only two officials who are non-political and who are experts on the law and experienced in interpreting it [Cheshin and Attorney-General Elyakim Rubinstein] also maintained that Marzel should have been disqualified and Tibi approved." He concluded with a quote from a 1988 Supreme Court decision: "Anyone who expects a body made up of politicians to behave like judges is confusing apples with oranges."
Justice Cheshin himself made no effort to conceal his contempt for his colleagues on the CEC. At one point, he wondered whether it was necessary to wait for more CEC members to hear the testimony of Bishara on the grounds, "It is open to question whether they could understand [what they heard.]" After the Committee’s decision allowing the Marzel candidacy, Cheshin pronounced himself "shocked" and expressed his hope that Supreme Court would overrule the decision.
The short answer to this criticism is that Israeli law confers the decision whether to ban individual candidates or lists on an Election Committee made up of representatives of the political parties. It did not make the justice of the Supreme Court who heads the CEC the sole arbiter. One can argue that the law is a bad one, and that the decision should be limited to the supernal beings who sit on the Israeli Supreme Court, but the place to change the law is in the Knesset. Similarly one can argue that no candidate or list should be banned for denial of Israel’s character as a Jewish and democratic state, racist incitement, or for supporting the armed struggle of an enemy state or terrorist organization. That, however, is what the law currently provides.
More importantly, there are two fundamental assumptions made by the critics of the CEC that deform Israeli democracy. The first is the pejorative use of the term political, i.e., value-laden. The second is the assumption that Supreme Court justices are neutral legal technicians without their own political values, and that their personal views do not color their legal decisions.
If we substitute the word "democratic" for "political", we will understand how misplaced is the pejorative use of "political" in so much of Israeli discourse, and how the Left dismissive use of the term "political" is used to justify the rule of unrepresentative elites.
The basic premise of representative democracy is that the fundamental normative values of a given society should be determined by "the People" through their elected representatives. Representative democracy assumes that the elected branches are better barometers of the views of the population than unelected and unrepresentative elites. (Public opinion polls show that 60% of Israelis support the ban of Tibi and Bishara, while a narrow plurality support excluding Marzel from the election.)
The scorn heaped on the ability of mere politicians to interpret the law is misplaced. The constitutional court of virtually every European democracy is chosen by the political echelons and according to political criteria. Many European constitutional courts do not require the justices to be lawyers. It is recognized that the interpretation of the abstract value terms of the constitution is best left in the hands of those who are responsive to the views of the general population.
The preference of many left-wing intellectuals for decision-making by narrow elites derives from their basic contempt for democracy. Judge Richard Posner writes of the affection of intellectuals for concentrated political power, "It is natural for them to fancy themselves the people who see clearly through the muddle that is social life as it is actually lived. They see that things could be better, they are frustrated by their powerlessness to make things better, and this attracts them . . . to political solutions that involve the imposition of order from the top down." Those solutions run from Stalinism on the Left to managerialism on the Right. The constant efforts by Israeli elites to defend the concentration of power in the Israeli Supreme Court partake of more than a little of this rejection of the fundamental premises of representative democracy.
Moreover, the portrayal of Supreme Court justices as value free technocrats belongs in the realm of pure mythmaking. Nowhere has the political ideology of the Israeli Supreme Court been clearer than in the area of protecting fundamental democratic rights, like the freedom of speech. The most glaring example, of course, is the contrast between two decisions issued by the same court on the same day dealing with incitement to terror.
In the first case, the Court overturned the conviction of Israeli Arab journalist Mohammed Jabarin under the anti-terrorism statutes for writing that "when throwing a Molotov cocktail, I feel I have found my identity and am defending that identity." The Court gave an extremely far-fetched reading to the anti-terrorism statute and limited incitement under the statute to statements of support for specific terror groups.
On the same day, the Court reversed its own previous acquittal of Binyamin Kahane for statements "arousing strife between different groups of the population" for calling on the government to wipe out the vipers nest of terrorism in the Israeli Arab town of Umm el-Fahm.
A comparison of the two cases shows that Jabarin’s statements, which praised specific terrorist actions by individuals, were far more likely to inspire such actions than Kahane’s call on the Israeli military to act. Yet in the Kahane case, the Court completely dispensed with traditional free speech analysis, which would have limited the statute dramatically on the grounds that the very breadth of the term "arousing strife between different groups of the population" would have a chilling effect on free speech. The Court did not require the traditional equivalent of shouting fire in a crowded theater to convict. Indeed it demanded nothing more that the statement might create a climate of hatred. The same could be said of every speech by Tommy Lapid.
The only rule to explain the two decisions by the same panel of the Court on the same day is: Arabs win; Jews lose. That indeed is pretty much the position that Justice Cheshin adopted in the CEC votes on Marzel, Bishara, and Tibi. His was not a principled position that there is virtually never a case for banning a Knesset list or candidate. He was perfectly prepared in the past to ban Kach, and to ban former Kach leader Marzel today.
That too has been the position adopted by the Israeli Left in general. Rather than defend the principle that all parties should be allowed to run, they have adopted the rule that all Arab parties should be allowed to run no matter what, but all Jewish parties to the right of the Likud should be banned. Thus the Labor party tried to have Herut party chairman Michael Kleiner banned from the election for "racist" incitement for saying that Israeli Arabs constitute a demographic time bomb – which is pretty close to a pure statement of fact.
The Left, however, is outraged by the ban on Bishara, who is currently on trial for collaborating with the enemy, sedition, and expression of support for terrorist organizations. On the first anniversary of Hafez al-Assad’s death, Bishara traveled to Damascus, where flanked by Hizbullah leader Sheikh Nasrallah, and in front of representatives of the most militant Palestinian terrorist groups and Hamas, he called on Arab countrie to expand their "resistance against [Israel’s] occupation, and to provide for the Palestinian people’s struggle against the occupation." That speech came well into the current Palestinian warfare against Israel.
In the same speech, Bishara singled out Hizbullah as a "heroic" example of "Islamic resistance." If that praise for an organization that had already kidnapped and murdered three Israeli soldiers and that has directed hundreds of Katushya rockets at Israel does not constitute "support for the armed struggle of a terrorist organization against Israel," what does?
To this the Left responds, "Sure Bishara seeks the destruction of Israel and supports all those working to bring it about, but he represents an important section of the Israeli Arab population, which will only become more alienated by his ouster." Here, too, the Left not only ignores the relevant statute, but is unprincipled. For the identical argument could have been made about Meir Kahane and Kach. At the time of Kach’s ban, opinion polls showed the party winning at least 10 seats – as many as the Arab parties hold today. Kahane’s supporters too could have been expected to become angry and alienated by the bar on Kach’s participation in elections.
It is no doubt true that Bishara represents a substantial and growing portion of the Israeli Arab population. The number and seriousness of terrorist incidents involving Israeli Arabs is skyrocketing. But that is hardly an argument for making sure that the most irredentist segment of the Israeli Arab population is represented in the Knesset. Do we really want the decisive votes about the security of the State of Israel determined by those who seek its destruction? Isn’t that why Knesset members are required by law to take loyalty oaths to the State?
At the end of the day, the hoi polloi on the CEC not only showed no more political bias in their decisionmaking than Justice Cheshin did in his, they also did a better job of interpreting Section 7(a) of the Basic Law on Elections.
Related Topics: Israeli Supreme Court
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