The case of Haneen Zoabi, and the rule of law

The legal limitations on running in elections, which were first enacted in 1985, were originally directed primarily against MK Meir Kahane.

By SUSAN HATTIS ROLEF
MK ZOABI speaks to reporters in Amman, Jordan 311 (R) (photo credit: REUTERS)
MK ZOABI speaks to reporters in Amman, Jordan 311 (R)
(photo credit: REUTERS)
Last week, a year and a half after the IDF intercepted the Gaza flotilla, Attorney-General Yehuda Weinstein decided not to bring charges against MK Haneen Zoabi (Balad) and three other Arab Israeli citizens who had participated in the flotilla, even though he described their conduct as “unworthy.”
Last Wednesday,Science and Technology Minister Daniel Herschkowitz (Habayit Hayehudi) presented the attorney-general’s decision to the Knesset in reply to motions for the agenda that House Committee chairman Yariv Levin (Likud) and MK Nissim Ze’ev (Shas) brought. According to the attorney-general, the decision not to press charges was based on the fact that none of the four had attacked IDF soldiers and that regarding the alleged offense of trying to enter enemy territory illegally, significant probative and legal difficulties had emerged.
One may add that since Weinstein could not establish that any criminal offense had been committed, he was not called upon to deal with the issue of Zoabi’s parliamentary immunity.
According to The Immunity of Knesset Members, their Rights and Duties Law, MKs enjoy full immunity for any act they perform within the framework of their parliamentary work. There are four exceptions to this rule: the act involves denying the existence of the State of Israel as the state of the Jewish People; it denies its nature as a democratic state; it incites to racism based on race or national-ethnic origin or supports the armed struggle of an enemy state or terrorist acts against the State of Israel, or for such acts against Jews or Arabs because they are Jews or Arabs, in Israel and abroad.
Incidentally these are also the four grounds for disqualifying parties from running for the Knesset.
Those who suggest putting Zoabi on trial despite the attorney-general’s decision argue that Weinstein failed to deal with the allegation that her participation in the flotilla contravened the fourth of these conditions – namely support for the armed struggle against Israel. In such a case, parliamentary immunity does not apply.
Had the attorney-general addressed this issue, Zoabi would undoubtedly have argued that her act was merely an expression of opposition to the country’s continued siege on Gaza, which constitutes collective punishment of a civilian population and therefore runs counter to International Law.
DURING THE debate in the Knesset last Wednesday, Levin repeatedly shouted that Zoabi would definitely not be a member of the next Knesset. There is no doubt that as elections for the 19th Knesset approach, right-wing parties will renew efforts to have Balad disqualified on the grounds that the party advocates turning Israel into “a state of all its citizens” – something they say essentially denies its existence as the state of the Jewish people. They also say Balad maintains contact with organizations that are defined in Israel as terrorist organizations.
In the past, the High Court of Justice has overturned Central Elections Committee decisions to disqualify Balad, but the last time the court ruled on this issue, it stated that Balad’s positions were problematic, implying that the party is walking on very thin legal ice. With the High Court’s more conservative makeup, and especially the approaching retirement of Supreme Court President Dorit Beinisch, it is quite likely that next time the court will uphold a committee decision to disqualify Balad.
The legal limitations on running in elections, which were first enacted in 1985, were originally directed primarily against MK Meir Kahane, who had bombarded the 11th Knesset with racist bills. The provisions regarding denial of the Jewish state were part of a deal between Labor and the Likud in the national unity government at the time. Today, if and when the High Court starts interpreting the law more stringently vis-à-vis Arab parties, it is unclear whether the court will also interpret the provisions regarding incitement to racism and denial of the democratic nature of the state, in the same manner.
While it will be very difficult to disqualify parties that do not incite to racism or advocate weakening Israel’s democracy, there is a clearly identified group of MKs, from several parties, who do incite to racism and challenge Israel’s democracy. It is time the law is amended so that individuals can be disqualified as well. At the same time, however, there is a clearly identified group of MKs, representing several parties on the Right and Left, who do violate the current legislation. It is time the law is amended so that individuals can be disqualified for promoting racist policies as well.
For instance, last Monday, MK Danny Danon (Likud), chairman of the Knesset Committee for Immigration, Absorption and Diaspora Affairs, told the committee that hundreds of Jewish new immigrant girls had been “kidnapped” by Arabs in the South – a “phenomenon” that police representatives at the meeting denied and rejected out of hand. Danon’s performance certainly smacked of racism of the worst kind and brought shame to the Knesset.
The writer teaches at the Max Stern Yezreel Valley College and was a Knesset employee for many years.