January 10, 2003

High Court overturns disqualifications
of Tibi, Bishara

By Dan Izenberg

The High Court of Justice on Thursday overturned Central Elections Committee decisions to disqualify MKs Ahmed Tibi and Azmi Bishara, and Bishara's party, Balad, from running in the elections to the 16th Knesset. It upheld the committee's decision to allow former Kach Party leader Baruch Marzel to run on the Herut Party ticket.

The court also upheld CEC decisions to disqualify Likud would-be candidates Shaul Mofaz and Moshe Feiglin on technical grounds.

The justices did not explain the reasons for their decisions, saying they will come at a later time. The 11-member panel headed by Supreme Court President Aharon Barak also comprised Deputy President Shlomo Levin and Justices Eliahu Mazza, Tova Strasberg-Cohen, Dalia Dorner, Jacob Turkel, Dorit Beinisch, Izhak Englard, Eliezer Rivlin, Ayala Procaccia, and Edmond Levy.

The court was asked to decide whether the substance of the platforms and political messages of Tibi, Bishara, Balad, and Marzel rejected the Jewish and democratic nature of the state, incited to racism, or supported armed struggle against Israel.

The CEC had rejected Tibi, the No. 3 candidate on the joint Hadash-Arab National Movement (Ta'al) slate, on the grounds that he supported a terrorist movement in its violent struggle against Israel. In doing so, it rejected the opinions of its chairman, Supreme Court Justice Mishael Cheshin, and Attorney-General Elyakim Rubinstein.

The justices unanimously rejected the CEC ruling. The CEC had rejected Bishara and Balad despite the opinion of Cheshin, but in accordance with that of Rubinstein, who went so far as to submit his own petition to the CEC against the party and its leader. The CEC ruled that Bishara and Balad sought to destroy the Jewish character of the state and supported the armed struggle against it. The High Court ruled seven-to-four to overturn the CEC ruling, with Levin, Strasberg-Cohen, Turkel, and Levy voting against the bench majority.

The CEC had rejected a petition by Labor Party MK Ophir Pines-Paz to disqualify Marzel. Pines claimed that Marzel, the No. 2 candidate on the Herut Party list, continues to support the racist and terrorist aims of the outlawed Kach movement of which he had been a leader. The CEC rejected the petition, even though Cheshin and Rubinstein had backed it. The court rejected the appeal to overrule the CEC decision by seven to four, with Levin, Strasberg-Cohen, Beinisch, and Procaccia voting against the majority.

The court unanimously rejected the petition of Mofaz against his disqualification by the CEC on technical grounds. It upheld the CEC ruling on the grounds that Mofaz would not have completed the mandatory six-month cooling-off period between the day he left the army and the day of the general election. The court also upheld the CEC ruling declaring that Feiglin was ineligible to run for the Knesset because he had been sentenced to over three months in jail after being convicted of sedition, a crime the CEC had determined involved moral turpitude. Levy voted against the majority.

Adalah, the Israeli Arab human rights organization that represented the Arab candidates, issued a statement declaring that "the High Court decision proved that when the sides hold a rational discussion without belligerency, as opposed to the one in the Central Elections Committee, the outcome will be a positive one."

The court's decision to allow Tibi, Bishara, and Balad to run was a wise one, said Mordechai Kremnitzer, professor of law at Hebrew University and president of the Press Council. "It rejected the message sent out to the Arab community by the Central Elections Committee saying, 'You are about to lose your status as equal citizens in this country,'" he said.

He said the decision to allow Marzel to run was also a wise one, given the fact that he was one of three candidates and a political party that all faced disqualification. "Had circumstances been different, if the question of Marzel had been the only one, the court's decision would have been different," according to Kremnitzer.

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