Government of the people?

The High Court has ruled that while a person may be barred from serving as mayor due to allegations of serious legal misdemeanors, that person retains the right to stand as a mayoral candidate.

By YOEL SHERIDAN
October 20, 2013 22:47
4 minute read.
A Tel Aviv man votes with his dog

A Tel Aviv man votes with his dog 370. (photo credit: Nir Elias/Reuters)

The municipal elections are fast approaching, and four towns are facing a conflict between democratic and legal rights concerning the status of mayoral candidates.

The High Court has ruled that while a person may be barred from serving as mayor due to allegations of serious legal misdemeanors, that person retains the right to stand as a mayoral candidate. The court says it cannot intervene in this matter and the electorate can exercise its right to vote for whomever it chooses. Or, as the attorney-general is reported to have said in one case, the candidate may be unfit for re-election, but we cannot legally stop him from running for the position.

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As a person is innocent in law until found guilty, it seems that voters on election day will also, among their other choices, have to face the dilemma of whether or not to give the benefit of doubt. Is this an Israeli phenomenon or could it happen elsewhere? The British have faced similar legal tangles in respect to parliamentary candidates.

The best known case is that of Charles Bradlaugh, an atheist and pro-feminist social reformer. He was elected to represent the East Midlands town of Northampton as a Liberal Member of the British Parliament in the year 1880, but was prevented from sitting as an MP until 1886 due to the laws then in place. MPs were required to take an oath that included the words “upon the true faith of a Christian.”

Concessions to the law had previously been made to Catholics in 1829 and to other Christian sects such as Quakers in 1833, and even to Jews in 1858, but parliament made no concessions to atheists until 1888. Bradlaugh had other problems. In 1877, he ,together with Annie Besant, a leading women’s rights activist, were indicted for publishing a book promoting birth control which was considered licentious at the time.

They were found guilty but the case was dismissed on appeal.

The Northampton electorate did not accept the parliamentary rulings and re-elected Charles Bradlaugh five times. In 1881, 1882, 1883 and 1884, he was ejected from the House each time. It is said that when once he offered to take the oath, he was prevented on the basis that as an atheist, his oath would not be sincere. Finally, after being re-elected again in 1885, he was not ejected from the House because the Speaker (despite the law) refused to hear objections and Bradlaugh took the oath by affirmation, and took his seat as an MP.

He remained an active Member of Parliament until his death in 1891.

It is interesting to note that after the passing of the more liberal Oaths Act of 1888, the House of Commons repented and resolved, unanimously, that all records of its previous votes for Bradlaugh’s expulsion be deleted. Sadly, he was not present on that occasion and he died three days later without ever learning of the Commons’ resolution.

Jews suffered similar disabilities until 1858 when an Act was passed that allowed them to take the oath without the words “upon the true faith of a Christian.” Lionel de Rothschild was elected as a Member of Parliament by voters in the City of London in 1847 but was not allowed to take his seat until 1858 even though he was re-elected in 1849, 1852 and 1857. He became the first Jewish MP.

David Salomons was elected as MP for Greenwich in 1851 but he also was not allowed to sit in the House of Commons. Nevertheless he insisted on taking his seat and as a consequence he was ejected and fined 500 pounds sterling, no small amount then.

(Bradlaugh also suffered similar fines, that have stayed at the same nominal figure to this day).

Salomons was re-elected for Greenwich in 1859 and served as an MP until his death in 1873. In 1835 he was elected Sheriff of the City of London but was unable to take that post until the Christian references in the required oath were removed by law later that year. Salomons was elected Lord Mayor of London in 1855 by which time the oath for that post had been amended to allow him to serve.

Sinn Féin Members of Parliament have always had problems.

In 1919 when Southern Ireland was still a province of the UK, some Sinn Féin candidates were elected to the London House of Commons, but they refused to swear allegiance to the British crown and instead set themselves up as the first Dáil of the “Republic of Ireland.”

Sinn Féin MPs, elected in Northern Ireland, still refuse to take their seats in the London House of Commons as they believe that all of Ireland should be an independent republic.

Voters, in a constituency where the candidate is unable to take his or her seat in parliament, are not completely disenfranchised. MPs who do not take up their seats may act on behalf of their constituents by having access to ministers, although they will suffer restrictions regarding many other parliamentary services.

According to the House of Commons Speaker’s May 1997 statement, “Any Member who fails to take the oath or to make the affirmation that is required by law and who then votes or sits during any debate after the election of the Speaker is subject to a penalty of 500 pounds sterling on each occasion and his or her seat is automatically vacated. In 1924 one of my predecessors ruled that any such Member could not receive a salary and this regulation also applies to allowances.”

The conflict between democratic and legal rights is not uniquely Israeli, it is universal.

The writer is the Author of From here to Obscurity and Gold Ducats and Devilry Afoot.


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