Did Right harm itself by supporting High Court's Chikli decision? - analysis

The right-wing bloc is notorious for criticizing the High Court of Justice, but now it's expressing support for it.

 Leader of the Opposition and head of the Likud party Benjamin Netanyahu speaks to the media  in Tel Aviv on October 3, 2022.  (photo credit: AVSHALOM SASSONI/FLASH90)
Leader of the Opposition and head of the Likud party Benjamin Netanyahu speaks to the media in Tel Aviv on October 3, 2022.
(photo credit: AVSHALOM SASSONI/FLASH90)

Sunday marked the passing of one of the final hurdles before the November 1 election, as the High Court handed down its decisions regarding appeals against former Yamina MKs Idit Silman and Amichai Chikli's insertion into the Likud list, and against the anti-Zionist Arab party Balad's participation.

The court ruled that all three will be able to run as planned. It published a full decision regarding Balad, but regarding Chikli and Silman the court ruled without providing detailed opinions due to the short timetable. These opinions are expected within days.

How could the rulings affect the election?

Chikli and Silman's remaining in the Likud serve as a victory for the right-wing bloc – and, ironically, Balad's participation benefits this bloc as well.

Balad will, with near certainty, fail to pass the electoral threshold, but if it does not drop out of the race, it is expected to burn tens of thousands of votes that belong in the center-left camp.

Balad leader MK Sami Abou Shahadeh has indicated that his party would run until the end, and the green light given by the High Court to Balad thus benefits the right-wing bloc.

 MK AMICHAI CHIKLI attends the House Committee meeting in the Knesset last week at which he was declared a defector. (credit: YONATAN SINDEL/FLASH90) MK AMICHAI CHIKLI attends the House Committee meeting in the Knesset last week at which he was declared a defector. (credit: YONATAN SINDEL/FLASH90)

While the court's ruling on Balad was unanimous, three of the judges wrote that the party was on "the edge of the borderline that justifies disqualification," and they did not accept a ruling from 2009 that also gave Balad approval to run. The reason the current appeal was accepted was that the evidence presented to the court was "very thin."

In other words, Balad's representatives have made a large number of statements and actions that could have been used as evidence of its opposition to Israel's Jewish and democratic character," but the legal case brought before the judges were prepared hastily and inadequate.

This is a convenient outcome for the right-wing parties since they now have Balad running and wasting votes, without having its platform determined as acceptable.

The case of Chikli and Silman

Regarding Chikli and Silman, the case against both had to do with a law that bars candidates who deserted their parties from running on a different party list. The idea is to block situations where MKs are given "political bribes" by opposing parties in exchange for them acting against the party within which they were elected.

The cases of Chikli and Silman are not identical, and both could have gone either way for a number of reasons. The High Court in a rare nine-member panel decided unanimously to uphold the head of the election committee’s decision to give Silman the green light to run.

This is remarkable because the election committee head is himself a High Court justice, Yizhak Amit, and the court thus overturned a decision made by one of its members.

It is also remarkable because the near-unanimous ruling struck down an opinion made by Attorney-General Gali Baharv-Miara, who opposed Chikli's placement on the Likud list.

One of the right-wing bloc’s central themes in the election has been to reform the judiciary system, including introducing a law giving the Knesset the power to overturn High Court decisions, making the attorney-general a political appointment and limiting its power to giving non-binding legal opinions.

At first glance, the court’s ruling served this agenda on two fronts: It showed that decisions made by high-court justices are not foolproof, and also undermined the attorney-general by not accepting her opinion, the second time in a month that her opinion was not accepted, after the High Court on September 22 ruled that a caretaker government was not authorized to appoint former High Court justice Menachem (Meni) Mazuz as a permanent head of the Senior Appointments Advisory Committee.

At second glance, however, the right-wing’s support for the High Court’s decision regarding Chikli and Silman could end up serving as an own goal, as it undermines the bloc’s fierce rhetoric against that same court.

Likud leader Benjamin Netanyahu, Chikli himself, and many others have repeatedly spoken out against what they argue is the High Court's activist approach and its meddling in political matters.

However, the message that came across on Sunday was that this was true only when the court ruled against the Right. But when it ruled in its favor – on Mazuz, Chikli and Silman, and others – its involvement was applauded