The difficult relationship between the Israeli right and the judicial system took a turn for the worse on March 17, when the Supreme Court upheld a previous decision banning a controversial politician from running in the upcoming elections.
The saga began on March 5 when Attorney General Avichai Mandelblit submitted a legal opinion to the Central Elections Committee stating that Michael Ben-Ari, head of the far-right Otzma Yehudit (Jewish Power) party should not be allowed to run due to “incitement to racism,” a disqualifying parameter in Israel’s election law. The opinion cited Ben-Ari’s 53 previous indictments for hate speech, including references to Arabs as “a murderous nation” and calls to deport Israel’s Bedouin population.
According to Mandelblit, Ben-Ari’s case “is not a borderline case. It lies deep within the parameters justifying the candidate’s disqualification by law.”
But the following day, Mandelblit’s opinion was overruled by the Central Elections Committee, a body composed of Knesset members representing all parties. That decision was appealed by a group of parliamentarians on the left and a number of NGOs, including the Reform movement. Earlier this week, eight Supreme Court judges reaffirmed Ben Ari’s disqualification, with just one dissenting opinion.
The decision caused an uproar among politicians and pundits on the right, not least because it created a legal precedent: For the first time in Israeli history an individual candidate was barred from running for his personal views, not his party’s stated platform.
To add insult to injury, the Supreme Court allowed two Arab lists banned by the Central Elections Committee to run: the socialist Hadash-Ta’al list, and the Arab-nationalist and Islamist Ra’am-Balad list. It also OK’d the firebrand Ofer Cassif, Hadash’s sole Jewish candidate. In a recent interview with Haaretz newspaper, Cassif, a Hebrew University political science professor, called IDF activity in the Palestinian Territories “a crawling genocide,” legitimized the targeting of IDF soldiers, and advocated for the resettlement of Palestinian refugees in Israel.
Pundits on the right are particularly enraged by the fact that, in 2012, the Supreme Court allowed MK Hanin Zoabi–who joined the 2010 Gaza flotilla and had called for an “intifada” against Israeli soldiers–to run for office. The court also approved her party, Balad, which advocates Israel becoming a binational state and whose former leader, Azmi Bishara, had fled the country after being charged with aiding Hezbollah. In 2017, the election law was changed to ban parties or individuals that “oppose the existence of Israel as a Jewish and democratic state.” That new article, the critics argue, was blatantly ignored by the recent Supreme Court ruling that affirmed Cassif and the Arab parties.
“They tell you this is a democracy? No, it’s not. What we have here is a legal junta trying to take over our lives,” Ben-Ari said at a press conference in Jerusalem following his disqualification. “Balad and Ofer Cassif are calling for the targeting of my son who is now on guard in Hebron as a soldier in Givati. He’s in and I’m ruled out?”
Ben-Ari proudly considers himself a disciple of Rabbi Meir Kahane, a Brooklyn-native who as head of the Kach party served as Knesset member in the mid-1980s with a platform advocating the deportation of “disloyal” Arabs from Israel. Ironically, in 1984 it was the Central Elections Committee that banned Kach from participating in the elections, and the Supreme Court that overturned the decision. In 1988, Israeli law was changed to disqualify Kach, and two years later Kahane was assassinated by an Egyptian terrorist following a speech in New York. Kach was designated a terror group in 1994, though Otzma Yehudit–now incorporated into the mainstream Jewish Home list–has distanced itself from Kahane’s movement.
Ben-Ari’s disqualification has had immediate political ramifications. Rafi Peretz, the leader of the Jewish Home party, which is running together with Otzma Yehudit, appealed to the Central Elections Committee, asking that Itamar Ben-Gvir, Otzma Yehudit’s No. 2, be allowed to take Ben-Ari’s place on the party list.
But deeper political changes may now be underway. On March 18, Justice Minister Ayelet Shaked, a member of the New Right party, launched her 100-day plan for a “judicial revolution” following the April 9 elections. Billboards across the country depicted the images of Shaked and her running mate, Naftali Bennett, with the slogan “Shaked will preside over Bagatz [an acronym for the Supreme Court], while Bennett will defeat Hamas.” The Supreme Court was too soft on terrorism, Bennett declared in a series of tweets and media interviews, but all that will change.
According to Shaked’s plan, Supreme Court justices will no longer be appointed by a nine-person committee consisting of lawyers, elected politicians, and sitting judges, but rather directly by the Israeli parliament. Similar to the U.S. system, judges will then face a public hearing before the Knesset’s Constitution, Law and Justice Committee. In addition, the Knesset will be able to overturn a Supreme Court decision following a final ruling, a legal model that exists in Canada.
“The Supreme Court has orchestrated a coup. Elections have become almost meaningless. The people have been replaced by the ‘enlightened public,’” Shaked told a student conference in Jerusalem. “The democratic revolution is half-way done.”
Given the new energy pumped into the campaigns of the right, some talking heads on the left opined that legally tackling Ben-Ari may have been a grave political mistake.
“Disqualifying Michael Ben-Ari–who justifies every nasty word said about him and his worldview–was a stupid mistake by the Supreme Court, which will only help the right bloc,” tweeted veteran journalist Dan Margalit. “It both got rid of Ben-Ari and will cash in on it.”
But Mordechai Kremnitzer, a left-leaning legal expert with the Israel Democracy Institute, argued that although disqualifying a candidate was “an extreme measure which gravely harms basic rights,” it was justified in Ben-Ari’s case.
“His was the most revolting and terrible incitement to racism,” Kremnitzer wrote in an op-ed published by Haaretz. “His words could fall on open ears. This is indeed the most extreme case, which makes the disqualification inevitable. It is good that the Knesset was spared the fiasco that the Israeli right was not afraid of causing.”
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Elhanan Miller (@ElhananMiller) is a Jerusalem-based reporter specializing in the Arab world.