Strong Israel’s Itamar Ben- Gvir and Balad’s attorney Hassan Jabareen sat side
by side on Monday in an unusual hearing before the High Court of
Justice.
The hearing challenges Central Elections Committee chariman,
Justice Elyakim Rubinstein’s decision to ban certain of each parties’ election
campaign broadcasts.
Only a few weeks ago, the two sides were in a
dramatic legal and physical confrontation before the same court where Ben-Gvir
tried to help disqualify Balad MK Haneen Zoabi, and Zoabi fought successfully
for her right to run.
But on Monday, all extremes of the political
spectrum from the Israeli-Arab parties to the hard-right were united to defend
what they called Rubinstein’s over-reach in striking down their rights to free
speech.
The Association for Civil Rights in Israel’s head lawyer Dan
Yakir also made a forceful presentation for both sides and against censorship of
free speech.
The court was expected to issue a decision as early as late
Monday night or Tuesday.
Strong Israel had aired a broadcast with the
slogan “not an Arab country, and not a country of infiltrators,” referring to
its positions to marginalize the identity of the state’s non- Jewish inhabitants
and to push for policies discouraging African migrants from staying in the
country.
Balad, in contrast, had parodied the “Hatikva” national anthem
to the melody of an Arabic pop song.
The juxtaposition of banning
messages from parties on the opposite extremes of the spectrum, and which
messages were attacking the other side or its core values was noteworthy, as
well as ACRI’s protest for both sides.
ACRI more often than not fights
for causes associated with more left-wing politics, although it is not formally
associated with any party.
According to ACRI, under Israeli elections
law, during the two weeks preceding the elections, each of the political parties
is given access to public radio and television airwaves at designated times to
air their political message in a short broadcast.
Much of the proceeding
revolved around the justices and the lawyers arguing over how past precedents
applied or did not apply to the current dispute.
The judges asked tough
questions to both sides, although the lawyers seeking to overturn the ban did
most of the talking.
Regarding the Strong Israel broadcast, the election
committee announced that the words “not an Arab country, and not a country of
infiltrators” must be struck from the radio broadcast.
Justice Rubinstein
also said that he is considering disallowing the expressions “no rights without
obligations,” and “without the fulfillment of these obligations, rights cannot
be demanded.” The decision to disallow parts of the campaign broadcast was taken
with the party’s agreement, but without a legal explanation, said
ACRI.
Regarding the Balad broadcast which appeared to parody “Hatikva,”
the spot was disqualified in full.
Justice Rubinstein noted that the
radio spot presented the national anthem in a distorted and ridiculing manner,
and stated that “contempt of the symbols of the state, the Jewish and democratic
state, is not acceptable to me.” While this was a more detailed explanation, it
was still unclear to what extent the decision was a legal versus a values
determination.
Attorney Dan Yakir, ACRI chief legal counsel, said about
the ban, “Freedom of expression includes the right to broadcast satire and
provocative statements.” He added, “This is especially important when it comes
to election campaign broadcasts, which are intended to help citizens decide for
whom to vote. The decision to disallow parts of the broadcasts was not founded
on the tests for the limitation of freedom of expression established by the
Supreme Court, and therefore has no legal basis.”
“While radio and
television are no longer the exclusive channels for a political campaign’s
public exposure (and it is safe to assume that the disqualifications will only
increase the visibility of these messages), when a Supreme Court Justice harms
the freedom of expression without valid justification, it creates a dangerous
precedent,” said Yakir.
Last month Justice Rubinstein disqualified Strong
Israel’s billboard campaign, a decision that ACRI also opposed.
Regarding
the election commission’s disqualification of Balad MK Haneen Zoabi, eventually
overturned by the High Court of Justice, Rubinstein had abstained.