The High Court’s striking down of the Central Elections Committee’s
disqualification of Balad MK Haneen Zoabi seemed inevitable in light of the 9-0
decision by the court and the recent case law on the issue, in which it has not
upheld disqualification of an Israeli Arab MK.
In that light, why did an
overwhelming majority of the Central Elections Committee – mostly MKs
representing parties on the Right – vote to disqualify her? Didn’t their vote
look like an exercise in futility?
Likud MK Danny Danon and others probably went
for the unlikely knockout as another step in a larger plan. They do not
care about Zoabi, per se. The agenda is much broader than that, and
includes setting the stage for changing the law.
Article 7a of the Basic
Law: The Knesset says that a party list or an individual candidate cannot reject
Israel as a Jewish and democratic state; incite to violence; or support armed
combat by an enemy state or terrorist organization against the State of Israel.
Key for disqualifying Zoabi was the interpretation of the confluence of the
clauses about Israel as a “Jewish and democratic state and supporting armed
Combined with requiring an extremely high level of proof, the
phrase “Jewish and democratic state” is diluted and mixes the terms “Jewish” and
“democratic” enough to effectively defeat arguments for disqualifying a
candidate based solely on the candidate’s general opposition to the government
officially sanctioning its Jewishness.
In other words, courts have
essentially said that if a candidate affirms the state’s democratic character
and does not support armed conflict or violence, opposition to the Jewishness of
the state, it will not get him or her disqualified.
But what if the law
was changed, making opposition to the state’s Jewishness grounds for
disqualification? The battle for changing the law is part of a
legal-philosophical battle today, which the attorney arguing for disqualifying
Zoabi referred to, about what Israeli democracy means for its Arab
In Zoabi’s Israeli democracy, the state currently discriminates
against Israeli-Arab rights and is overly Jewish-centrist.
She does not
accept the idea that Israel should have a government-sanctioned Jewish character
and she is willing to go to provocative lengths to make her opinion public, even
participating in the May 2010 Mavi Marmara flotilla.
But she has very
clearly, even on the flotilla, refrained from actual violence.
Zoabi and past Israeli-Arab leaders say their liberalism presses them to
separate “church” and state and to categorically oppose violence
In Danon’s Israeli democracy, Israeli-Arabs should be an
appreciative minority. They have it better here economically and they have
greater political freedom to express their views than Arabs do in neighboring
He would say they should not be abusing that freedom by
aggressively protesting the state’s Jewishness.
For Danon, Zoabi’s
sailing with the flotilla crossed a red line and proved that the theoretical
balance of opposing the state’s Jewish character aggressively but nonviolently
is an impossible balance to maintain.
He believes that this imbalance
inevitably leads to participating in actions such as the flotilla, which
endanger the state’s security even if they are not overtly
Israelis are less patient with public shows of Israeli Arab
dissent against the state’s Jewishness than they used to be. But there is still
strong support for the right to strongly protest these ideas nonviolently –
particularly in the legal community, as shown by the 9-0 vote and by
Attorney-General Yehuda Weinstein’s support for Zoabi’s running for the 19th
In his bigger war of trying to change the law, Danon wanted to
place more public pressure on this community and on those who would defend
Zoabi’s right to be aggressive about her vision of Israeli democracy, as he told
The Jerusalem Post in an interview right before the hearing.
Based on the
current law, in the court’s 2003 Tibi opinion, which was used to reject
disqualifying Israeli-Arab parties about two years ago, the High Court set the
extremely high standard of proof for disqualifying at evidence that is
“convincing, clear and unequivocal.”
The court said that “only with this
high standard of evidence is there the power to solve the democratic paradox of
being able to negate one of the central rights of a democracy – the right to
choose and be chosen” in elections.
Danon and his school view this
standard as stacking the game in favor of the Israeli-Arab parties. They view any acts of speech against the state’s
Jewishness – especially participating in the flotilla – as a sign of wanting to
destroy the state.
When he opposed disqualifying Zoabi, Weinstein said
that the Tibi and earlier opinions ruled that there was nothing about pressing
nonviolently for Israel to be “a state of all of its citizens” and not an
officially “Jewish” state that “could constitute a ground for
Danon and his followers would say that this is a
“weak, naïve democracy” and that, if courts can’t disqualify someone like Zoabi
for participating in the flotilla, the law is no good and needs to be
Now Danon has forced the High Court and the attorney-general,
however much they disclaim Zoabi’s conduct, to take the side of a flotilla
Danon can publicly campaign to change the law, saying that
anyone who opposes a change brings future flotillas.
The High Court could
have easily struck down Zoabi’s disqualification 9-0, but in a country moving
farther Right in its politics, this could be a lethal sword.
The vote of
the Central Elections Committee indicated that Center-Left parties may stand
with Danon on this issue, as Kadima lawmakers voted along with Likudniks to ban
The question is what wording a new law could take. Also, if the
wording outlaws any acts of opposition, specifically to the idea of the state’s
“Jewishness” as opposed to intertwining “Jewish and democratic” together as the
law currently stands, would the court be willing to strike down such a law as
unconstitutional? Besides the debate about the identity of Israeli democracy,
there is a subtext regarding how much Israelis really felt threatened – or
merely furious – about Zoabi’s participation in the flotilla.
ignored ruling on this issue is relatively liberal chief justice Simon Agranat’s
1965 decision banning the Arab Socialist Party, also known as
Contextualizing the decision in the aftermath of the Nazis’
toppling the Weimar Republic, the Cold War and the American Civil War, Agranat
said, “If you would not say so [that the idea of a Jewish nation state is a
fundamental constitutional premise] it would mean complete ignominy toward the
two wars Israel has fought... to prevent its annihilation by the hostile Arab
states... utter negation of the history of the Jewish people... including the
contradiction to the fact of the Holocaust.”
But when Agranat wrote his
opinion, Syria and Egypt had formed an alliance and the Six Day War, or a war
like it over Israel’s existence, hung over the country in plain
When the attorneys arguing for disqualifying Zoabi mentioned the
Nazis’ overthrowing the Weimar Republic, it provoked more indifference and
eye-rolling from the court than it did alarm.
At the end of the day, one
of the reasons that this question is unclear is that it is possible that the
country has not decided what it thinks about Zoabi’s participation in the
flotilla. Most Israelis were infuriated emotionally, but that does not mean they
felt that she had threatened them.
If judges and the country do not feel
threatened, as Agranat did in 1965, it is likely that, whether under new or old
law, disqualifications will be thrown out and aggressive Israeli Arab
politicians will continue to be able to run for Knesset.