Petitions that seek to prevent candidacy divert the discussion to the fringe that lack political power, instead of addressing racism and democratic decline among the large parties
The right to vote and be elected is the lifeblood of democracy, and the disqualification of parties or candidates collides with that head-on. It not only prevents the list or the candidate from contending, it also harms the electorate, which is denied of the right to vote for its representatives. This time around we are addressing two petitions: the first demands the disqualification of members of the "Jewish Power" party, and the second involves disqualification of “Hadash” and “Ta'al.”
The law states that it is possible to prevent candidacy for the Knesset if the goals or actions of a candidate or party include statements that incite racism or support an armed struggle of an enemy state or a terrorist organization. The law may sound logical and express the notion of a defensive democracy, but for our collective benefit it is best for it to remain an idea rather than be implemented.
The basic failure of the clause lies in the procedure. The body that determines the disqualification is not neutral, but rather comprised of politicians who are members of the Elections Committee, which reflect the composition of the outgoing Knesset. They perform a "peer trial," which is reminiscent of a field trial. They are unable or unwilling to apply the law in a neutral and egalitarian manner. They themselves want to be elected and to weaken their opponents. That's their modus operandi. The expectation that the law will be applied objectively in the midst of an election campaign is baseless. Although any decision to disqualify a candidate is brought before the Supreme Court for approval (and in the case of a list — for appeal), the law is structured as such that only candidates from the less popular political periphery will be summoned for a legal hearing.
Indeed, time and again, before every election members of Knesset rush to submit a motion to disqualify lists and candidates. Anyone who violates the law cannot be a Knesset member in any case, thus most disqualifications are requested on the basis of provocative statements gathered in the media. That is, on the basis of political statements that are interpreted through the eyes of the majority and in accordance with its narrative.
Prior to consideration or an evidentiary examination, politicians already declare the outcome in advance. They are the prosecutors, judges, and executioners. In most cases they vote to disqualify parties knowing that the decision will not hold water upon judicial review.
In the previous elections, for example, leaders of the Zionist Union party announced that they would not support requests to disqualify Haneen Zoabi and Baruch Marzel in view of the Attorney General’s position, which determined that the evidence contained no grounds for their disqualification. Yet the political pressure increased until Herzog and Livni buckled and supported both of their disqualifications. The consideration was entirely electoral: the fear of a potential loss of right-wing voters who might join the Zionist Union outweighed the fear of inadequate Arab support. These are extraneous considerations, of course. As with each election, the Supreme Court was compelled to intervene and rescind the decision to disqualify them, leading to unbridled lashing out through a delegitimization campaign against the judges.
But the disqualification fest is a particularly rewarding celebration, because most parties are secure in this game. A candidate with a racist worldview who's a member of the ruling party will never be disqualified. But you can go wild over those on the margins, and, first and foremost, over the Arab candidates. The Arab lists are perceived within the political system as illegitimate by coalition partners, and they are an isolated minority without political backing.
The use of disqualification is a wonderful platform for isolating, weakening, and demoralizing their voters, some of whom already boycott the elections anyway. Moreover, it requires all political parties to "choose a side," and thus parties that oppose the disqualification of Arabs for topical reasons will be presented as supporting and identifying with the candidates’ doctrine of disqualification. In any case, there is no room for facts and evidence at the peak of election propaganda.
Moreover, marginalization of the fringe enables politicians to be portrayed as subjects of miraculous moderation without seeing the hunch on their backs. Politicians whose daily routines involve racism and anti-democratic legislation are given the opportunity to be seen as the flag-bearers of the struggle for democracy. The disqualification fest sparks fire and public debate on the political fringes that lack political power, instead of addressing racism, deteriorating democracy, and even support for (Jewish) terrorism among members of the various parties competing for power, and from whom democracy truly needs to defend itself.
Attorney Gil Gan-Mor is the director of ACRI's Social and Economic Rights Unit
Published on ynet on 27.2.2019 (Hebrew)