High Court disqualifies Ben-Ari; Rules Ben-Gvir, all Arab parties eligible

With its decision, the High Court essentially followed the recommendations of Attorney-General Avichai Mandelblit, while overruling several decisions of the Central Elections Committee.

Dr. Michael Ben-Ari, Ph.D in archeology and Member of Knesset from 2009 - 2013 with the National Union party (photo credit: MARC ISRAEL SELLEM)
Dr. Michael Ben-Ari, Ph.D in archeology and Member of Knesset from 2009 - 2013 with the National Union party
(photo credit: MARC ISRAEL SELLEM)
The High Court of Justice disqualified Otzma Yehudit candidate Michael Ben-Ari from running in the upcoming elections due to racism, but permitted his party colleague Itamar Ben-Gvir to run, as well as all of the Arab parties.
With its decision on Sunday night, the High Court essentially followed the recommendations of Attorney-General Avichai Mandelblit, while overruling several decisions of the Central Elections Committee, which had disqualified the Balad-United Arab List parties and Hadash candidate Ofer Kassif, the Arab party’s only Jewish candidate.
It had ruled Ben-Ari and Ben-Gvir, as well as the Hadash-Ta’al Arab parties (other than Kassif) to be eligible.
Mandelblit had said that while Balad-UAL and Kassif’s statements about the State of Israel and the IDF were highly problematic, they did not meet a “critical mass” of supporting armed conflict with Israel under the law for disqualification.
The court’s 8-1 decision – with only Justice David Mintz dissenting and voting to disqualify Balad-UAL and Kassif – signaled that it accepted this reasoning, though its full, reasoned decision will be published at a later date.
Likewise with Ben-Ari, the court’s 8-1 decision – with only Justice Noam Sohlberg dissenting and voting for Ben-Ari to remain eligible – signaled support for Mandelblit’s contention that the candidate’s statements violated racism against Arabs, both in terms of incitement and in terms of him taking some concrete actions to promote racism.
Mandelblit had said that Ben-Gvir’s statements were problematic, but that he had been more careful than Ben-Ari to avoid explicit support of or actions backing racism, which appeared to be why the court declared him eligible although he is also from the far-right Otzma Party.
Ben-Gvir said it was the first time that the High Court had ever disqualified a Knesset candidate who the committee had accepted.
Almost every time, the committee disqualifies some Arab party candidates and the High Court reinstates them. But Sunday’s decision was unusual because the High Court took a special initiative to disqualify.
Justice Minister Ayelet Shaked – who in the past has said that her conservative appointments accomplished a revolution, swinging the court from being left-leaning to right-leaning – slammed the decisions.
She said: “It’s the last straw for the High Court’s justices – and they have changed themselves into political actors. The High Court decision to disqualify Ben-Ari, and on the other hand to approve the eligibility of [Arab political] parties which support terror, is a massive and mistaken intervention going to the heart of Israeli democracy.”
She added that the decision, “tramples on the decisions of the Central Elections Committee.”
Shaked vowed that Monday morning she will announce a plan to transform the judiciary during her next term in the Knesset.
Adalah, which represented the Arab parties before the High Court, said, “For 20 years, Israeli politicians have been exploiting the Central Elections Committee in a racist manner to delegitimize representatives of the Arab public.
“The time has come to recognize that this committee cannot and should not vet requests to disqualify candidates or parties from running in national elections,” said Adalah.
Its statement continued: “The Supreme Court overturns the committee’s decisions time and again, recognizing there is no legitimate cause for these disqualifications. But the candidates nevertheless remain tainted and marked as enemies.”
“Authority must be taken away from the political figures who are exploiting the committee’s power without any constitutional backing,” concluded the NGO.
Though the High Court’s full opinion will not come out until later, the justices’ strong distaste for Ben-Ari’s statements was apparent at last week’s hearing.
Multiple justices said to Ben-Ari last week that his statements seemed to assume that 99% of Israel’s Arab citizens are disloyal.
His lawyer, Yitzhak Baum, did not directly explain how his words could be interpreted differently, but said that there was no real way to know how many Arabs were loyal, since those who were loyal were intimidated into silence.
In a dramatic moment, the sole Israeli-Arab justice on the court, George Kara, asked Ben-Ari and Baum: “who decides about loyalty? Does Ben-Ari decide?”
He also asked what Ben-Ari’s criteria were for deciding whether he thought Arabs with Israeli citizenship were loyal to the state or whether he would brand them as traitors, as he has in some public statements.
Baum responded that Ben-Ari would address this question to the voters and that it is an issue being debated in the political sphere.
Justice Uzi Vogelman implied to Ben-Ari that his statements indicating that Arabs should be prevented from living in Afula were “removing the mask” of any chance of hiding his racist intentions.
 In his defense, Baum said Ben-Ari was not a racist and that comments he has made against Arabs were directed against violent Arabs or terrorists. Ben-Ari himself focused on the emotions of the moments during which he made some of the problematic statements.
He noted that when he made many of the statements against Arabs being presented as warranting his disqualification, it was often in the presence of Jewish families whose loved ones were recently murdered by Arabs.
There had been some expectations that the vote regarding Kassif might have been closer, as he was pounded by the justices last week for his problematic statements.
A Yisrael Beytenu lawyer told the court that Kassif’s statements calling the State of Israel, Justice Minister Ayelet Shaked and others “Nazis” and “neo-Nazis” crossed the line for someone running for the Knesset.
He also said Kassif’s statements apparently praising those who attack IDF soldiers as heroes showed his support for armed conflict against Israel and justified disqualifying his candidacy.
Justices Noam Sohlberg, David Mintz and Neal Hendel all hit Adalah lawyer Hassan Jabareen with hard questions about Kassif’s statements, especially about attacking IDF soldiers.
Jabareen explained that Kassif was explaining the academic debate about whether attacking soldiers is terrorism or part of armed conflict between two warring sides, but that on a personal level, Kassif opposes all violence.
Hendel said to Jabareen that he was asking readers and the court to do a schizophrenic analysis to understand Kassif’s statements. He said it was unrealistic to expect average readers to read Kassif’s journal articles so they would understand that he does not support armed conflict.
Despite these attacks on Kassif, Sohlberg and Hendel both voted with the majority to allow him to run.