No triumph for Israeli democracy
by Jonathan Rosenblum
January 17, 2003
Last week’s Supreme Court’s decision permitting Azmi Bishara, Ahmed Tibi, and Baruch Marzel to run for the Knesset is being hailed as a triumph for Israeli democracy. Don’t believe it.
Democracy requires the broadest possible standards of eligibility for political office. Nowhere, however, is that right unlimited. Parliamentarians everywhere must take loyalty oaths to the country in whose legislature they sit. Little more than a year ago, European Court of Human Rights upheld a Turkish ban on an Islamic party, even though almost all Turks are Moslems.
Israeli law, too, bars candidates and parties who engage in racist incitement and those who support the armed struggle of an enemy state or terrorist organization. The former provision was upheld by the Israeli Supreme Court in 1988 when it left the ban on Kach in place. No "democratic" voices of protest were heard on the Left.
Yet every argument advanced for permitting Bishara’s Balad Party could be made with respect to Kach. True, Balad’s anti-Israel irredentism reflects a substantial portion of Israeli Arab opinion. But at the time of its disqualification, Kach was projected to win more seats than all the Arab parties combined today. Just as a ban of Arab parties and candidates today would risk further alienating Israeli Arabs, the ban on Kach further alienated angry Jews.
If Bishara represents a significant segment of the Israeli Arab population, that only raises the question: Do we really want the potentially decisive votes on Israel’s security to be cast by those who seek its destruction? In drafting the provision against candidates who support enemy states or terrorist organizations, the Knesset explicitly had in mind the type of speech Bishara delivered in Damascus on the first anniversary of the death of Hafez Assad, and for which he is currently on trial for sedition.
Well into the current Palestinian war on Israel, Bishara called on Arab countries to expand their "resistance against Israel’s occupation, and to provide for the Palestinian people’s struggle against the occupation." Flanked by Hizbullah leader Shiekh Nasrallah, and in front of the most militant Palestinian factions, he lauded Hizbullah as a heroic example of Islamic resistance. That was long after Hizbullah had kidnapped four Israelis, killing three of them, and launched hundreds of katyushas at Israel.
In overturning the CEC’s ban on Bishara, then, the Supreme Court was practicing a form of judicial nullification of Knesset statutes without having the courage to state explicitly that it was doing so. Such judicial nullification is itself anti-democratic.
NOR DID the Supreme Court’s decision give any credence to purveyors of the myth of justices applying neutral legal principles, without any political bias. Legal commentators, like former justice Yitzchak Zamir, were scandalized by the effrontery of political buffoons on the Central Elections Committee in ignoring the views of Committee Chairman Michael Cheshin. A week later, however, the 11-member panel of the Supreme Court upheld the CEC’s decision to permit Marzel’s candidacy while reversing its decision to ban Tibi and Bishara. Politicians 1; Justice Cheshin 1.
Cheshin can be excused for having gotten things only half right. After all, he was only applying the "neutral" principle formerly developed by the Supreme Court in cases involving "fundamental" rights: Arabs have them; Jews don’t. The most glaring application of this principle in action came two years ago when the same panel of the Court decided two cases dealing with incitement on the same day.
In the first case, the Court overturned the conviction of Israeli Arab journalist Mohammed Jabarin under the anti-terrorism statutes for an article celebrating the liberating effects of throwing Molotov cocktails. The Court implausibly read the anti-terrorism statute to outlaw only statements of support for named terrorist organizations, not those supporting terrorist acts.
On the same day, the Court reversed its own previous acquittal of Binyamin Kahane, under a statute forbidding statements "arousing strife between different groups of the population." In contrast to the Jabarin case, the Court gave the widest possible reading of the statute, even though traditionally courts either strike down or interpret narrowly statutes whose language is so broad and ambiguous as to "chill" legitimate speech. The words "arousing hatred between various groups of the population, " which could describe every speech of Tommy Lapid, certainly fit into the category of overly broad and ambiguous.
A comparison of the two cases shows that Jabarin’s statements, which praised specific terrorist actions by individuals, were far more likely to inspire violent acts than Kahane’s call on the Israeli military to act. Yet in the Kahane case, 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, in conjunction with other extraneous factors, might create a climate of hatred.
On its face at least, the Court’s decision last Thursday had the virtue of being more principled and less blatantly ideological. After all, the Court allowed Marzel to run as well as Bishara and Tibi. Yet far from demonstrating the Court’s neutrality, the upholding of the CEC decision to let Marzel run shows only that Chief Justice Aharon Barak is a more skilled politician than Justice Cheshin. Marzel, unlike Bishara and Tibi, is unlikely to win a seat in the next Knesset. Barak realized that there was nothing to be gained by banning Marzel and outraging the Right with a blatantly political decision.
Hebrew University Professor Mordechai Kremnitzer, who is himself often mentioned as a future justice, commended the Court for the wisdom of allowing Marzel to run "under the circumstances." Like most commentators, however, he added that "if the question of Marzel had been the only one, the Court’s decision would have been different."
In short, the Court’s wisdom was political not philosophical in nature. Indeed the Court, with only one justice dissenting, left in place Justice Cheshin’s most openly political decision – that barring Moshe Feiglin from running. From from being a purely technical decision, as many legal commentators erroneously claimed, the classification of Feiglin’s acts of civil disobedience to protest the Oslo accord, as crimes involving "kalon," or moral turpitude was highly ideological.
If there is one exception to the general rule that all crimes carry an element of shame, it is acts of civil disobedience, where the perpetrator makes no attempt to evade detection or arrest and fully accepts the right of the legal system to punish him. The judge who tried Feiglin acknowledged as much, and did not sentence him to even a single day of prison.
Feiglin is the right-wing analogue of the "refuseniks" who refuse to serve in the territories. Does anyone imagine for a moment that the Court would find an element of "shame" in the prison terms meted out to conscientious objectors?
While the decision of the Supreme Court to allow Bishara, Tibi, and Marzel to run may have been a prudential one, it hardly establishes the Court as the defender of Israeli democracy against the political rabble. Nor does it do anything to convince us that the justices are legal technocrats whose opinions on crucial normative issues are any less influenced by their own ideological predispositions than those of the average Israeli.
Related Topics: Israeli Supreme Court
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