Supreme Court Judges as Political Figures

Tuesday, March 19, 2019 |  Tsvi Sadan

The decision by Israel's Supreme Court to disqualify Dr. Michael Ben-Ari, leader of the far-right party Otzmah Yehudit party, from participating in the upcoming election has infuriated the right-wing camp like never before. Especially given that the court approved of far-left candidate Prof. Ofer Cassif of the Hadash party. 

Member of Knesset Bezalel Smotrich, head of the right-wing National Union faction, stated that "for the first time in the State of Israel's history, a 'council of wise men' is deciding who Israel's citizens are allowed to vote for, instead of the voters deciding." 

In a last-ditch effort ahead of the April 9 vote, Smotrich vowed to "submit a bill to abolish Section 7a tomorrow, and I will demand that all the leaders of the coalition parties pass it during this Knesset, in order to cancel the Supreme Court’s dictatorship." Smotrich meant to abolish section (b), which states that every decision of the electoral committee has to be approved by the Supreme Court.

Section 7A of the Election Law prohibits parties or individuals from participation in Knesset elections on grounds of "denying the existence of the State of Israel as a Jewish and democratic state, incitement to racism and support of armed struggle, an enemy state or a terrorist organization against the State of Israel."

In 70 years, the Supreme Court has disqualified just two parties. In 1965, it disqualified the Socialist List on the grounds that this Arab party had denied the existence of Israel as a Jewish state. In 1988, it disqualified the Kach party of Rabbi Meir Kahane for inciting racism against the country's Arab population. Never before, however, has an individual candidate been disqualified, making Ben-Ari into a controversial precedent.

No less important is the fact that since Section 7A was introduced in 1985, not a single Arab party has been disqualified from participating in an election, despite the fact that all Arab parties without exception deny the existence of Israel as a Jewish state, and Arab Knesset Members have openly expressed support for Israel's enemies.

So, what makes Ben-Ari so condemnable, even more so than an Israel-hater like Ofer Cassif? In the last few months, Ben-Ari said among other things that "the Arabs of Haifa are no different than the Arabs of Gaza; [Israeli Arabs are a] 'fifth column' … they are our enemies who want to annihilate us." On another occasion he said that "any Arab who dares speak against a Jew should be killed." For these remarks and others, Ben-Ari was branded a racist and deemed unfit to serve in the Knesset.

Ofer Cassif, on the other hand, has called Prime Minister Benjamin Netanyahu an "arch-murderer." And in his eyes, IDF Chief of Staff Aviv Kochavi is a "war criminal," Justice Minister Ayelet Shaked is "neo-Nazi scum," and any Jew who ascends the Temple Mount is part of a "cancerous growth that must be eliminated." As a member of the radical Hadash party, Cassif also thinks that the very notion of a Jewish state is racist.

For Israel's right-wing voters, it is quite clear why the Supreme Court banned Ben-Ari, while giving Cassif a "thumbs up." The justices presiding over the highest court in the land are politically-motivated, and their rulings have demonstrated time and again that they identify with the far left of the political spectrum. That's why, the right-wing constituency argues, of the nine judges on the bench, just one voted against the decision to ban Ban-Ari, conservative Justice Noam Solberg. Concerning Cassif, of the nine judges, only conservative Justice David Mintz that that he, too, should be disqualified.

This latest Supreme Court decision turns judicial activism into one of the most important issues in the upcoming election. In addition to everything else, Israelis now quarrel over the very meaning of democracy, and whether or not the Supreme Court exercises undue authority. 

Justice Minister Ayelet Shaked eloquently addressed the issue in a clever campaign commercial that is currently taking Israeli social media by storm. Shot like a perfume advertisement, Shaked is seen promoting her new scent with slogans about restraining judicial activism and increasing accountability, which to leftists smells like Facism. But for Shaked, "it smells like democracy."


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