Rule of Law: The Zoabi strategy

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 combat.”

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 minority.

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.

In fact, Zoabi and past Israeli-Arab leaders say their liberalism presses them to separate “church” and state and to categorically oppose violence simultaneously.

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 states.

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 violent.

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 Knesset.

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 disqualification.”

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 changed.

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 participant.

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 Zoabi.

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.

One mostly ignored ruling on this issue is relatively liberal chief justice Simon Agranat’s 1965 decision banning the Arab Socialist Party, also known as Al-Ard.

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 sight.

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.