The coalition agreement between the Likud and Otzma Yehudit includes a provision that will enable citizens who incite to racism, or do not accept Israel’s definition as a Jewish and democratic state, to run for the Knesset.
Clause 7A of the Basic Law: The Knesset, reads:
“A candidates’ list shall not participate in elections for the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following: 1. Negation of the existence of the State of Israel as a Jewish and democratic state; 2. Incitement to racism; 3. Support for armed struggle by a hostile state or a terrorist organization against the State of Israel.”
Otzma Yehudit and the Likud agreed to erase the second criteria, “incitement to racism.”
Otzma argued that this criterion was applied narrowly, only against Jewish extremists, and therefore should be erased.
The Central Elections Committee, ahead of every election, usually bars a number of parties and politicians from running based on this clause, including the Arab-Israeli party Balad and a number of far-right Jewish politicians. However, these decisions are always appealed, and the High Court usually strikes them down.
Cases in which the High Court barred candidates from running include the Kahanist Kach party in 1988 and 1992, and far-right candidates Michael Ben-Ari ahead of the election for the 21st Knesset in April 2019, and Bentzi Gopstein and Baruch Marzel ahead of the election for the 22nd Knesset, in September 2019. In these cases, the court accepted appeals to strike down the candidates even though they were ratified by the Elections Committee.
On other occasions, the court reversed decisions to bar parties and candidates, including Balad, Marzel, Azmi Bishara, Hanin Zouabi and others, according to data from the Israel Democracy Institute. This means that if the law indeed is scrapped, Marzel, Ben Ari and other far-right figures could run in the next election, as could extremist Arab groups.
The law is unfair - Otzma Yehudit
Labor chair and outgoing Transportation Minister Merav Michaeli responded on Twitter, “Congratulations to Hamas, for whom Bibi has just opened the door to the Israeli Knesset. Bibi has also sold out Zionism.”
The Association for Civil Rights in Israel issued a statement opposing the amendment, arguing instead that the entire 7A clause should be erased.
“The fact that the Likud and Religious Zionism Party [mistake in source, as the deal was with Otzma Yehudit] reached an agreement to cancel only the criteria of incitement to racism as grounds for preventing participation in the elections, and leave the other criteria intact, indicates their intention to turn the mechanism of disqualification of the lists into one that will only lead to the disqualification of Arab parties and candidates,” the association said.
"Congratulations to Hamas, for whom Bibi has just opened the door to the Israeli Knesset. Bibi has also sold Zionism."Merav Michaeli
“This conclusion, together with the reduction of the authority of the High Court, may lead to the law being used to prevent the Arab lists from running in the next election. Until now, the disqualification decisions have only been annulled thanks to judicial review.
“The clause was seen in the past as defending democracy, but it has zero benefit while its price is extremely high and endangers the possibility of minorities and entire groups being represented in the Knesset,” the association concluded.
Another controversial clause that was reportedly inserted into the agreement was imposing a death sentence on convicted terrorists, which Ben-Gvir has promoted throughout his life as activist. This provision was not included in the unofficial list the party published on Thursday. According to a statement by Otzma Yehudit, the sides agreed to legislate such a law before the passing of the 2023 budget.
Ben-Gvir’s proposed bill, which would give him unprecedented control over the Israel Police, will split in two and only partially come into law before the government is sworn in, the incoming minister announced on Thursday to the ad-hoc Knesset Committee that has been debating the bill for the past week and a half.
In the coming days, the committee will finalize, and bring to the Knesset plenum for final ratification, the law’s provisions regarding the Israel Police’s subordinance to the government, as well as the minister’s ability to set policy and principles in general, and specifically regarding investigations, Ben-Gvir said.
However, two other clauses – regarding the police commissioner direct subordinance to the national security minister and the minister’s power to intervene in policy regarding the extent of legal proceedings – will remain in the committee for further debate after the government is formed, and will be voted upon in the coming weeks, Ben-Gvir added.
The bill was initially being expedited through the committee in order to pass before the government is sworn in on January 2, at the very latest.
Of the four laws that were being fast-tracked through the Knesset, Ben-Gvir’s law holds the most dramatic implications, as it seeks to redraw the balance of power between the government and the chief of the Israel Police in favor of the former.
Most legal and law enforcement professionals who appeared before the committee said the law, as it currently stands, is vague and complicates the situation even more.
Until Wednesday, Ben-Gvir seemed poised to push through the law regardless, but on Thursday he changed his position “due to the Knesset Legal Advisor’s comments regarding the fast-tracking of the law and in order for the High Court not to strike it down,” the future minister told the committee.
Although this does not mean the final wording will change, the soon-to-be opposition saw it as a victory.
“We fought for hours and hours in the committee, along with all of the legal advisers. Lo and behold, today there came a glorious retreat. On one hand it is too bad he did not listen, as this would have avoided wasting hours on it, but on the other, due to the work in the committee the bill was split,” Yesh Atid said.
The Labor party stated: “The fight against those who seek to destroy the rule of law is Sisyphean and ongoing, and today we achieved an important victory. After hard work in the committees and in the plenum and thanks to our appeal to the Knesset’s legal advisers – Ben-Gvir is backing down from some of his hasty demands that could turn the Israel Police into political police. He will, of course, try to do it again at a later date,” the party said.
Throughout Thursday, the committee, led by Likud MK Ofir Katz, voted on hundreds of reservations that the incoming opposition put forward in order to delay its passing. It is unclear whether now that the bill has split, the opposition will continue its delaying tactics.
Two of the other laws which were being debated together since both were amendments to the Basic Law: The Government - the “Deri Law,” which would enable Shas chairman MK Arye Deri to serve as a minister despite his conviction for tax offenses, and the “Smotrich Law,” to enable RZP chairman MK Bezalel Smotrich to serve as a second minister in the defense ministry with responsibility for civilian matters in the West Bank – passed their preparations in a temporary committee led by Likud MK Shlomo Karhi, and will be put to the Knesset plenum for their final reading next week.