On 20 January 2009 at 10 am, the Supreme Court of Israel will hold a hearing on an appeal submitted by Adalah on behalf of the National Democratic Assembly Party (NDA, Tajamu or Balad) and the United Arab List and Arab Movement for Change (UALAMC) party against a decision made by the Central Elections Committee (CEC) to prevent the two party lists from participating in the upcoming elections to the Knesset. An expanded nine-justice panel of the Supreme Court will hear the appeal and will issue a decision by Thursday, 22 January 2009 at the latest.

In the appeal Adalah Attorneys Hassan Jabareen and Orna Kohn argued that although the CEC is a semi-judicial body and despite the fact that the right to be elected is a basic constitutional right, the CEC failed to discuss the motions filed to disqualify the two parties with due diligence. Further, the considerations that led to the disqualifications were racist, not legal. In addition, the discussion surrounding the disqualification motions was meaningless and was not based on any substantial evidence. Those who filed the disqualification motions created a divisive atmosphere within the CEC based on an “us versus them” divide, which precluded a rational debate on the basis of Israeli law, as interpreted in Israeli Supreme Court case law.

The appeal further argued that the statements made by a large numbers of CEC members indicate that they view the participation of Arab party lists in the Knesset elections as a favor or an act of goodwill, rather than as a basic constitutional right. The discussion within the CEC focused on a demand made by those who filed the disqualification motions that the representatives of the Arab party lists demonstrate their loyalty to Zionism. Thus members of the CEC followed the election slogan of Avigdor Lieberman, the chair of the far-right party Yisrael Beiteinu (“Israel is Our Home”) party: “No loyalty no citizenship”. Needless to say, this demand is only made of Arab citizens and not non-Zionist, Ultra-Orthodox Jewish party lists.

The disqualification motions argued the parties deny the Jewish nature of the state and support armed struggle against Israel, and thus should be disqualified under Article 7a of the Basic Law: The Knesset. Representatives of the NDA and UALAMC stated in their responses to the motions that they were dedicated representatives of the Arab minority in Israel, that they were not Zionists, and that they were opposed to Israeli policies of discrimination or oppression. They also stated that via peaceful means and through the Knesset they strive to alter the character nature of the state to one that stands on the foundation of the principle of total civil and national equality, and which does not grant preference to one national group over the other.

As stated in the appeal, since Lieberman, his party, and the National Union Party – who filed the disqualification motions – are openly demanding in their election campaigns the denial of basic rights to Arab citizens, the CEC’s decision to ban Arab party lists that call for total equality, civil and national, and uphold universal principles from the Knesset was extremely unreasonable. The decision contradicts Article 7a of the Basic Law: The Knesset in particular, as there can be no democracy if the minority is banned from being represented in the Knesset.

The decision taken by the CEC to ban the NDA and UALAMC from running in the Knesset elections represents a grave violation of international law, which stipulates the rights of national minorities to appropriate representation in parliament, to choose their own representatives, to influence governance through democratic means, and to adopt positions that are contrary to those of the majority. The decision is also in breach of the State of Israel’s obligations to implement the international conventions that it has ratified, in particular the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The appeal also discussed the opinion submitted to the CEC by the Attorney General, Menachem Mazuz, in which he opposed the disqualification motions. Mazuz considers that even if all the claims made in the motions were correct they would not constitute a sufficient reason to disqualify political parties, since they are not based on serious legal evidence. In Adalah’s responses to the CED, it was stressed that the disqualification motions are based on quotations attributed to leaders of the two parties that were taken from Internet websites, which clearly fail to meet the minimum evidentiary threshold required in order to disqualify a political party according to Supreme Court case law.

It should be stressed that on the same day that the NDA and UALAMC were disqualified from the elections, the CEC rejected a motions to disqualify the Shas Party and the Degel Hatorah Party from running. The motion to disqualify the latter two Ultra-Orthodox Jewish parties was based on the claim that they oppose the “democratic nature of the state.” The motion was based on a large number of quotations attributed to the leadership of the parties that were taken from Internet websites and newspapers and that clearly indicate that they do not recognize the governing institutions of the state, in particular the judicial authority, or democratic values. Despite these facts, the CEC unanimously rejected the motion, arguing that it was based only on quotations from newspapers.

Thus in the absence of any judicial evidence, the only question that remains for the court to determine is whether or not the right to be elected to the Knesset is dependent on the loyalty of Arab citizens to the principles of Zionism. Adalah therefore argued in the appeal that, as Supreme Court decisions have demonstrated several times previously, a political party cannot be disqualified from running in elections on the basis of its ideological positions, particularly if it seeks to achieve its goals through democratic means.

Supreme Court Decision (Hebrew)

Adalah’s Appeal (Hebrew)