Policy Assessment by Ameer Makhoul | Progress Center for Policies
Introduction: On 1 October, the Israeli Supreme Court considered the decisions of the Knesset Central Elections Committee to disqualify the Joint List and the United Arab List, as well as to disqualify both the head of the National Democratic Assembly (Balad) party, Sami Abu Shehadeh, and Ofer Cassif, MK for the Democratic Front for Peace and Equality (Hadash). The deliberations lasted about ten hours.
The case of the Joint List’s third candidate, Sami Abu Shehadeh, attracted the most attention, as his position is the most difficult following the Central Elections Committee’s decision to disqualify him. That decision was supported by the committee’s chairman, Justice Sohlberg, who, as is customary, does not vote except in exceptional cases, and the committee’s decision relied on the position of the Attorney General.
The disqualification took place in the Elections Committee on 23/9 based on a request submitted by Ben Gvir, Minister of National Security and head of the Otzma Yehudit party, who relied on an article Abu Shehadeh published on 8 October 2023. The committee approved it by an overwhelming majority, deeming that it violated Section 7 of the Counter-Terrorism Law, and considered the article to be support for terrorism against the State of Israel in its war.
After the conclusion of its deliberations on Abu Shehadeh’s case, the President of the Supreme Court, Yitzhak Amit, said: “There is a consensus among the justices that the words Abu Shehadeh wrote are repugnant. The clear outcome is that the disqualification decision will be upheld. We recommend that Mr. Abu Shehadeh reconsider whether or not to run, in a way that would make a reasoned ruling on him by the Supreme Court unnecessary.” After lengthy meetings within the National Democratic Assembly party, the party decided that Abu Shehadeh would withdraw his candidacy.
The Balad party justified its decision as follows: “Balad emphasized that the decision does not constitute a retreat from the party’s positions, nor a submission to the campaign of incitement and disqualification led by the right, headed by Itamar Ben Gvir. Nor is it a withdrawal by Sami Abu Shehadeh from political life or from the leadership of Balad and national work. Abu Shehadeh will continue to head the party and lead it in the coming political and popular battles.
Balad affirmed that the response to the disqualification will not be withdrawal or despair, but rather more organization and political participation, strengthening Balad and the Joint List, and turning out in large numbers at the ballot box. Whoever sought to diminish our political presence and our representation in the Knesset must face a society that is more present, more organized, and more influential.” As for the other cases, the Supreme Court’s decision to reject the disqualification requests appears to be in effect.
Reading the landscape:
The legal dimension: Had the Supreme Court issued a reasoned ruling upholding Sami Abu Shehadeh’s disqualification from the list of Knesset candidates, it would have provided a stronger basis for the police, the intelligence services, and fascist right-wing associations to pursue him politically, including obtaining arrest warrants and administrative measures. The fact that the Court did not issue its ruling does not grant him immunity, however; the same measures may still be taken, even if the “threshold for proving the allegations” is harder to meet. A Supreme Court ruling, had it been issued, could also have been exploited to pursue the Balad party, which Abu Shehadeh heads, as well as its institutions.
Another dimension of the decision, legal and political, had it been issued by the Supreme Court, lies in the possibility of expanding its use in the future as a new “loyalty threshold” for Arab Knesset candidates to meet, turning it into a new Israeli standard added to the existing discriminatory and exclusionary criteria, which the Arab parties regard as political ethnic cleansing. A Supreme Court ruling, once issued, would also constitute an executive legal basis for the political persecution of Arab leaders and activists, men and women.
On the popular and morale level, the parties of the two Arab lists have agreed to seize upon this state of systemic oppression as an opportunity to raise voter turnout among the Palestinian Arab public to above seventy percent (in the previous elections it was 53%). Meanwhile, spontaneous popular reactions reveal the extent of anger and the sense of the authorities’ oppression of the Arab vote, with the slogan echoing in response to Abu Shehadeh’s disqualification: “We will disqualify them and disqualify their policies on election day.” In essence, Abu Shehadeh will be able to run for the Knesset later, since he was not convicted by the Supreme Court.
Implications of the Supreme Court Deliberations
The deliberations point to the existence of a normative judicial apartheid system, one that sets criteria for accepting Knesset candidates that in essence do not apply to Jews. This is because disqualification is carried out under the relevant Section 7 concerning support for terrorism against the State of Israel, and a single instance suffices, as happened with Abu Shehadeh’s article, with no need for the so-called critical mass of successive evidence pointing to a pattern, as the law currently presupposes.
The judicial overhaul led by Netanyahu’s coalition since it came to power in December 2022 has succeeded, and its components have in effect been accomplished, even if the legislation on which it rests has been frozen, since the ruling establishment has circumvented the provisions that were rejected procedurally but not substantively.
The Israeli far right, represented by National Security Minister Ben Gvir, despite its relatively limited parliamentary weight, has come to control the spirit of the system and to dominate, in various ways, the conduct of affairs in the judicial system and the Supreme Court. By contrast, the Supreme Court in the past disqualified candidates and lists belonging to the same Kahanist movement, on the grounds that they were racist and did not recognize the second half of Israel’s definition as a Jewish and democratic state.
Netanyahu’s Calculated Silence
Netanyahu appears to be the primary beneficiary of the Supreme Court’s 1 October deliberations to rule on the Central Elections Committee’s decisions to disqualify the Arab lists and the two MKs, Sami Abu Shehadeh and Ofer Cassif. Netanyahu personally has issued no comment on the Elections Committee’s decision of 23/9 or on the Supreme Court deliberations, and, according to observers, Ben Gvir’s adoption of the issue appears to be the product of a division of roles between the two.
Netanyahu’s plan for more than a year has stemmed from his conviction that he will not be able to form a government with any majority in the elections. Accordingly, as confirmed by former Prime Minister Ehud Barak (Ynet) and former Labor Party leader Eitan Cabel (Channel 12), Netanyahu’s aim is to prevent the current opposition from forming an alternative government. According to the latest poll conducted by Channel 13 on 30 September, Netanyahu’s bloc leads the opposition bloc, though neither bloc would be able to form a government after the elections. This is despite the fact that the opposition could rely on external support from the Arab parties to secure a minority government, but it fears the unrest and the delegitimization campaign the right is expected to ignite if it loses the elections.
Accordingly, Netanyahu has gained from the deliberations of the Elections Committee, which disqualified Arab representation, and of the Supreme Court, which confirmed it would disqualify Sami Abu Shehadeh. Netanyahu has achieved a key goal for him: delegitimizing Arab parliamentary representation as a whole from a Zionist point of view. In this way he corners the opposition and leaves it with no option other than a national unity government with him, securing a consensus on cancelling his legal cases and circumventing a state commission of inquiry into the failure of 7 October 2023. In effect, Netanyahu finds what he is looking for in the Elections Committee’s decisions, even if the Supreme Court overturned them, and in the disqualification of candidate Abu Shehadeh, as a system that serves his plans without any effort on his part.
Conclusion
The Israeli Supreme Court’s deliberations on the candidacy of Balad head Sami Abu Shehadeh, the Court President’s call for him to withdraw so as to avert a reasoned judicial ruling from the highest judicial body, and the preceding decision to disqualify the two Arab lists running in the Knesset elections all point to the crystallization of a new political and legal reality that further restricts the democratic freedoms available to the Arab parties. The Supreme Court’s decision regarding Abu Shehadeh constitutes a pivotal moment in the history of political oppression on a national and racist basis.
The mentality of ethnic cleansing does not stop at a single Palestinian geography or a single form of organization. Rather, what we are witnessing is political ethnic cleansing, as the Arab parties define it, which is also characterized by the ruling mindset’s subjugation of the judicial system and the Supreme Court and its domination over their functioning.
The disqualification decisions are expected to serve as a catalyst for the Arab public to raise voter turnout and participation in the elections, in defiance of the authorities’ and the judiciary’s oppression.
The Arab public is also expected to face intensive campaigns of police, intelligence, and settler persecution, to the point of imposing a violent confrontation on it that would suppress its desire to participate in the elections, change policies, and bring down the current government, despite its inability to determine the identity of the next government.
