Middle East and North Africa

The Near Disqualification of Heba Yazbak: Defensive Democracy in a Divided Society?

By Lila Margalit
Monday, March 23, 2020, 9:56 AM

On Feb. 9, the Israeli Supreme Court handed down its judgement in Katz v. Heba Yazbak, narrowly overturning a decision by the Central Elections Committee (CEC) to disqualify Palestinian-Israeli Member of Knesset (MK) Heba Yazbak from running for office, on the grounds of her support for terrorism. The decision, while in keeping with past rulings, once again tested the court’s ability to render unpopular verdicts in an increasingly difficult political climate. It also highlights the complex challenges inherent in the protection of democratic norms in a situation of ongoing conflict.

Israel’s “Defensive Democracy”

Like Germany, Israel embraces some elements of “militant” or “defensive” democracy—the idea that fundamental democratic freedoms, including the right to run for office, should be subject to limits designed to protect constitutional norms from being subverted through democratic processes. As a multiparty parliamentary system with a relatively low electoral threshold (3.25 percent, raised from 2 percent in 2014), Israel relies on the power to disqualify political parties as a safeguard against the empowerment of fringe, extremist elements. At the same time, as a society that continues to struggle with basic ideological cleavages—particularly between the Jewish majority and the Arab minority—the line it seeks to draw between legitimate political discourse and dangerously fringe views is itself often hotly contested.

The power to bar political parties from participating in elections was first recognized by the Israeli Supreme Court in 1964, in a case involving the “Socialist’s List,” a party affiliated with the pro-Nasserist Al-Ard movement, banned as a security threat a year earlier. Despite the lack of any explicit statutory authorization to disqualify political parties, the court held that the CEC had the inherent power to disqualify parties that seek to undermine the very existence of Israel. Two decades later, in 1985, the constitutional Basic Law: The Knesset was amended to provide statutory authority to disqualify parties that negate fundamental constitutional norms. The amendment was passed following another court ruling, which held that the CEC could not disqualify parties on additional grounds unless the law was changed.

Today, this provision—Article 7A of the Basic Law—allows parties as well as individual candidates to be barred from running for office if their purposes, activities or statements negate Israel’s existence as a Jewish and democratic state; incite racism; or support the armed struggle of an enemy state or a terrorist group against the country. The power to disqualify a party is held by the CEC, a highly politicized body that includes party representatives from the outgoing Knesset and is headed by a Supreme Court justice. The CEC’s decisions can be appealed to the Supreme Court, and any decision to disqualify individual candidates must be affirmatively approved by the court before it becomes final.

Since the Al-Ard case, the only political parties to have been successfully disqualified in Israel have been Meir Kahane’s Kach party and its offshoots, barred for inciting racism in 1988 and 1992, and later designated as terrorist groups both in Israel and abroad. More recently, three far-right politicians, some affiliated with Kach’s ideology, were also disqualified by the court as individual candidates. Nevertheless, hauling the Arab parties before the CEC has become a well-established ritual in every election cycle, with the attendant spectacle of forcing representatives of the minority to continually defend their fitness to run before a panel composed of their political rivals. Until now, the court has consistently blocked attempts to disqualify them and, in doing so, created a body of case law designed to limit the use of the “doomsday weapon” of interfering in elections to the most exceptional cases.

According to the court’s jurisprudence, parties and candidates can be barred only if they meet four stringent criteria. First, the activity deemed problematic must constitute a dominant part of their political agenda and an important motivation for their decision to seek office. Second, it must be clearly and unambiguously attributable to them. Third, they must be actively and intensively engaged in promoting the agenda that serves as the basis for their disqualification. Theoretical ideas and sporadic statements or activities will not suffice. Fourth, the allegations against them must be based on a “critical mass” of clear, unambiguous and convincing evidence, and any doubts must operate in their favor. In addition, while the court has never ruled definitively on the question of whether there must be a high probability of the party or candidate successfully implementing their problematic agenda, it has emphasized that the power to disqualify is preventive rather than punitive. The power’s purpose is not to punish individuals for expressing unpopular or disturbing views but, rather, to protect Israeli democracy from those who seek to exploit their presence in the Knesset to undermine it from within.

The Case Against Yazbak: Support for Terrorism?

On Jan. 29, the CEC voted 28-7 to disqualify Yazbak from running in the March 2 elections, on two grounds: support for terrorism and negation of Israel’s existence as a Jewish state. Yazbak belongs to the Balad (National Democratic Assembly) party, a Palestinian nationalist party founded in 1996, which supports the creation of a Palestinian state in the territories Israel occupied in 1967, demands the recognition of the Arab community in Israel as a national minority and opposes Israel’s definition as a Jewish state. Over the years, a number of Balad party members have been embroiled in controversy: Former MK Azmi Bishara, one of Balad’s founders, fled the country in 2007 amid accusations that he spied for Hezbollah during the 2006 Second Lebanon War. More recently, Balad MK Basel Ghattas served two years in prison after being convicted in a plea bargain of smuggling cellphones to Palestinian security prisoners.

The decision to disqualify Yazbak garnered broad-based political support, including from Benny Gantz’s center-left Blue and White Party and Amir Peretz’s left-wing Labor Party. Only the Joint List (a coalition of parties representing Israel’s Arab minority, including Balad) and the left-wing Meretz party dissented. In addition to disqualifying Yazbak, the CEC voted 13-0 to disqualify a new party founded by Larissa Amir, wife of Yigal Amir, who is serving a life sentence for the assassination of Prime Minister Yitzhak Rabin. The party, which calls itself the “Fair Trial” party, seeks to promote judicial reform and advocate for Amir’s release from prison. Several additional motions, including one to disqualify the Joint List as a whole, were denied by the Committee.

In its Feb. 9 judgment, the Supreme Court unanimously struck down as groundless the disqualification of the “Fair Trial” party, as well as Yazbak’s disqualification for negating Israel’s existence as a Jewish state. On the question of whether Yazbak should be disqualified for support for terrorism, however, the court remained sharply divided, with just a slim majority of five judges supporting the reversal. The case against Yazbak, as described by the court, rested on various statements she had made over the years, expressing support for individuals who committed acts of terrorism against Israeli civilians. Two incidents in particular stood at the center of the claim against her.

The first involved a post Yazbak shared on Facebook in December 2015, the day after the assassination in Syria of Hezbollah militant Samir Kuntar, allegedly by Israel. The post, which Yazbak shared without comment, featured a picture of Kuntar with the captions “Samir Kuntar the mujahid martyr” and “I have returned from Palestine only in order to return to Palestine.” Kuntar, who served a lengthy prison term in Israel and was released in 2008 as part of a prisoner swap, is best remembered for his notorious role in the murder and kidnapping of Israeli civilian Danny Haran and his four-year-old daughter Einat in the city of Nahariya in 1979. Perhaps most horrifically, Kuntar killed the young girl by smashing her skull against a rock with the butt of his rifle. Two Israeli policemen were also killed in the attack, as was Einat’s two-year-old sister, who was accidentally suffocated by her mother while in hiding.

The second incident involved a post Yazbak shared in 2013, featuring a snapshot of Palestine Liberation Organization militant Dalal Mughrabi, the lead perpetrator of a 1978 bus hijacking in which 35 Israeli civilians were killed, including 12 children. The post described Mughrabi as a hero and quoted her call to focus on the “common enemy” and to continue the struggle until Palestine is freed. This time, Yazbak added a comment of her own: “Dalal Mughrabi lived twenty years and accomplished all this. Bless the women of the resistance.”

The decision to disqualify Yazbak also cited several additional posts and statements by her, including a clip she shared in 2017, shortly after Palestinian Bassel al-Araj was killed in a shootout with Israeli troops, featuring statements he made praising the resistance; a 2019 interview in which Yazbak stated that Israeli soldiers were a legitimate target; and a picture she shared in 2019, depicting her standing with Ameer Makhoul, a Palestinian-Israeli citizen who was convicted of spying for Hezbollah in 2010. The picture carried a caption congratulating Makhoul upon his release from prison and calling for the release of the “prisoners of freedom.”

In response to the allegations against her, Yazbak expressed remorse for some of the posts, arguing at the same time that they had been taken out of context. The post featuring Kuntar, she argued, had been intended to protest Israel’s policy of extrajudicial killings, while the post featuring Mughrabi was shared against the backdrop of a dispute on the status of women in Palestinian society, following International Women’s Day. Other posts, she contended, were meant to express support for Palestinian prisoners and the need to improve their conditions of confinement, rather than to condone their actions. In any event, Yazbak pointed out, the problematic posts constituted a miniscule proportion of her online activities and were unrepresentative of her overall agenda, which focuses on issues like women’s rights and combating violence. Indeed, Yazbak argued that her commitment to political activism is predicated on a moral opposition to all forms of violence, whether against civilians or soldiers. In the months preceding her disqualification, Yazbak also published two articles in the Hebrew press explaining her stance.

Following these clarifications—and Yazbak’s explicit repudiation of violence—the attorney general took the position that while Yazbak came very close to crossing the line, there remained sufficient doubt as to her support for terrorism to render her disqualification unjustified. Writing for the majority, Justice Uzi Vogelman agreed.

While Yazbak’s posts were profoundly disturbing, Vogelman held, they did not reach the “critical mass” necessary to justify the exceptional step of preventing her from running for office, particularly when taken together with her clarifications and explicit disavowal of violence. While not all of Yazbak’s explanations were convincing, the problematic statements were sporadic, and many of them were several years old. There remained insufficient proof that they reflected a dominant part of her political agenda. Vogelman pointed out that given the law’s preventive purpose, the court tended to grant substantial weight to candidates’ public repudiations, rejecting them only in exceptional cases where there was clear-cut evidence of deceit. He gave the example of Baruch Marzel, a candidate from a far-right party who was twice permitted to run despite a history of incitement to racism. It was only the third time around, after the court found that Marzel had continued his problematic activities despite his statements, that it finally ruled to disqualify him. Vogelman was joined, in four separate concurring opinions, by Justices Daphne Barak-Erez, Yitzhak Amit, Anat Baron and Menachem Mazuz. While some of the concurring justices portrayed the dilemma as legally clear-cut, others expressed unease at the outcome. Justice Amit in particular took pains to note that while in view of the court’s case law he had come down on the side of giving Yazbak a “yellow card” (that is, a warning) rather than a “red” one, the decision was a difficult one.

In a notable dissenting opinion, Chief Justice Esther Hayut held Yazbak’s clarifications to be inadequate and unconvincing. When asked in a TV interview if she condemned Kuntar’s violence, for example, Yazbak merely stated that she was “against all violence and at the same time opposed the Occupation.” Only later, in her affidavit to the CEC, did she allow that she should have more clearly indicated her intent to protest Kuntar’s killing. Hayut was even more critical of Yazbak’s explanation of the Mughrabi post, observing that her very choice to present Mughrabi—a figure known solely for her participation in the 1978 attack—as a feminist icon spoke volumes. Even in her affidavit, Hayut pointed out, Yazbak confined her regret to her “choice of words,” rather than the post itself. All in all, Hayut concluded, the posts formed part of an “ongoing endeavor to extol the actions of those who have committed the worst deeds against the State of Israel and its citizens.” In three separate opinions, Justices David Mintz, Yosef Elron and Noam Sohlberg joined the dissent.

Defensive Democracy in a Divided Society?

Unsurprisingly, both the court’s ruling and the dissent drew sharp reactions. Some conservatives accused the court of adopting a double standard—demonstrating a willingness to disqualify right-wing parties and candidates over the years, while once again giving Balad MKs a free pass. Others welcomed the dissent as a sign that the court may be changing course, arguing that its traditional jurisprudence failed to neutrally implement the law’s objective of protecting Israel’s vulnerable shared ethos from extremists on both sides and thus threatened to undermine public faith in the judiciary. Liberals, for their part, expressed concern at the close judgment and chided the minority for letting their emotions get the best of them. Citing Barak-Erez’s concurring opinion—which upheld Yazbak’s candidacy precisely on the grounds that she ought not be held to a different standard than right-wing candidates who had been permitted to run—some liberals argued that any other outcome would have been discriminatory.

All in all, the court’s ruling remains in line with its consistent approach of reserving the power to disqualify candidates and parties for the most extreme cases. A decision to bar Yazbak from running would have marked a sharp break from existing practice, potentially opening the door to ever bolder attempts to silence the voice of the minority. In recent years, incitement against the Arab minority has become a mainstay of mainstream politicians—from Benjamin Netanyahu’s attempt to galvanize his base in 2015 by warning that “Arab voters are heading to the polling stations in droves” to repeated statements by government officials accusing Arab parties of aiding terrorists. At the same time, Netanyahu himself has cozied up to members of the far right, encouraging them to join forces with more mainstream parties in order to preserve right-wing votes. Now, following the March 2 elections—the third time Israelis have gone to the polls in less than a year, after previous rounds in April and September 2019 ended in political deadlock—Netanyahu once again sidelined the Arab electorate in his attempt to portray the 58 seats won by his right-wing bloc (three short of the 61 needed for a majority) as a victory. In the current political atmosphere, it is especially crucial that the court continue to protect the Arab minority against politicized attacks on its right to representation.

At the same time, the case underscores the inherent difficulty of defining and preserving a shared democratic vision in a divided nation facing ongoing conflict. The gap between the relatively broad statutory authority to disqualify parties and the court’s commendable reluctance to permit it to be wielded against a vulnerable minority sustains a dissonance that grants fodder to those who wish to undermine the court’s legitimacy. It allows politicians to score points by disqualifying minority candidates and then engage in court bashing when the judiciary steps in to protect the democratic process. And while not the main focus in Yazbak’s case, the power to bar candidates and parties that negate Israel’s definition as a Jewish state—creating a problematic expectation of symmetry between those who seek to subvert democracy and Arab candidates who challenge Jewish national consensus—raises itself significant problems, too complex to be given justice here. Ultimately, a narrower conception of “defensive democracy,” limiting the power to intervene in the political process to truly extreme cases that pose an existential threat to democratic rule and granting that to a judicial body, rather than a political one, would appear better suited to the complex realities Israelis face.