By: Lawyer Omar Khmaisi

The Israeli judicial system cannot be separated from the ramifications and effects of the chronic political instability, manifested in holding the fifth election for the Knesset within just three years. This situation, born out of a politically unstable environment characterized by divisions, weakness, and fragmentation in the main political streams, reflects the broader impacts of this crisis on various aspects of life in Israel, particularly on the legal and judicial realms, which will be highlighted in this article.

There is ample evidence indicating that the legal system in Israel is inevitably affected by the political crisis, with its significant repercussions on the social fabric of Israeli society. The legal system has, in fact, become a battleground for incitement, polarization, and the distribution of accusations among the different factions of the Israeli political system.

On the eve of the 25th Knesset elections, the impacts of the Israeli election cycle and the crisis of political instability on the legal and judicial system were clearly seen in the competition between the ruling coalition and the opposition. They engaged in efforts to win the favor of Israeli voters, whose political tendencies have shifted increasingly toward the far-right, which has dominated the Israeli political scene in recent years. This was not in an effort to serve the needs of the Jewish community, but rather to appeal to their voters. For instance, there were attempts to disqualify right-wing Knesset members who had split from the “Yamina” party, namely Amihai Shikli and Idit Silman, from running in the elections under the Likud party, as well as requests to disqualify the Arab parties, the Joint List and Balad.

An example of how the legal and judicial system became directly involved in the competitive electoral debates is the decision of the Chairman of the Central Elections Committee, Judge Yitzhak Amit (a Supreme Court justice who is set to become its president), who approved a petition calling for the disqualification of Shikli and Silman from running on the Likud list for legal reasons. We saw how Shikli did not let Judge Amit remain outside the electoral dispute and accused him of being a “disguised politician” and of making a “shameful, immoral, and entirely political decision.” In response, Shikli appealed the decision, and the Supreme Court overruled Amit’s decision with 8 judges voting against it and only one in support.

Upon examining the justifications behind this decision, it becomes clear how intertwined the judicial and legal systems are with the political and electoral processes. Similarly, this involvement extends to the role of the Government Legal Advisor, who is responsible for enforcing the law. Many of her positions also reflect her engagement in the competitive electoral debates, as she defined the legal ceiling within which she could defend or oppose the disqualification of the Joint List, particularly with regard to its political platform (a state for all its citizens).

Those who delve deeper into the decisions of the Supreme Court regarding the disqualification of party lists will notice that the scope for rights and freedoms has become increasingly narrow. It is as if permission to participate in elections has become a privilege, rather than an inherent right as stipulated by Israel’s Basic Law. The Court has, in effect, entered into discussions about the political platforms of parties, signaling when it might ban or disqualify them if their platform nears a certain threshold. The Joint List, for example, has been maneuvering politically along the fine line between legality and illegality, based on indicators set forth by the Supreme Court in several previous decisions regarding its disqualification. The party’s proposal for a “state for all its citizens” has not been raised since 2018, as the Court expressed concern that such a proposal could lead to the party’s disqualification.

This blatant interference by the judicial system in the elections and even in the political platforms of parties is evident. As a result, parties such as the Joint List have altered some of their political proposals or programs for fear of disqualification. A clear example of this is the issue of Palestinian prisoners, which was once a prominent part of the Arab parties’ programs. These parties had carried out visits to the families of prisoners and expressed solidarity publicly. However, following a fierce campaign by Jewish parties and Israeli media, which equated support for prisoners with support for terrorism, Arab parties began to back off from their position on the prisoners.

Such political wrangling and party infighting, such as the accusation that the Joint List does not recognize Israel as a Jewish state, is typically observed during election periods. This further exemplifies the political instability that is impacting the legal and judicial systems in Israel.

In practice, these competitive electoral debates force parties to turn to the courts ahead of each Knesset election, where the courts issue a final decision in favor of one party or another. As a result, the judicial system has found itself deeply entwined with the ramifications of Israel’s chronic political instability. Furthermore, the significant intervention of the judiciary in electoral disputes has caused it to become increasingly integrated with other branches of government.

In light of this, and with the Israeli public shifting further to the far-right, the election campaigns of far-right parties aiming to gain power or secure a few seats in the Knesset are primarily based on racially charged rhetoric targeting the Arab community in Israel. These parties and their leaders have made extreme, racist statements against Palestinians a key component of their political success. For example, the “Religious Zionism” party, led by Itamar Ben-Gvir and Bezalel Smotrich, has used their racist remarks as a successful strategy to attract votes, with the latest opinion polls predicting that their party would secure 13 Knesset seats—up from previously uncertain predictions of failure to cross the electoral threshold.

Naturally, these racist laws being enacted in the Knesset will be handled by the Israeli legal and judicial system, which is responsible for applying the law and settling disputes brought before it.

This situation is also reflected in the ongoing discourse on the introduction of the “limiting clause” (פסקת ההגבלה) in Israel’s Basic Law on Human Dignity and Liberty. This clause, as mentioned in the Knesset’s Basic Laws, states: “Rights under this law may only be limited by law that is compatible with the values of the State of Israel, aimed at achieving a legitimate goal, and that does not exceed what is necessary.” The right-wing continues to focus on this clause, using it to propose laws that could conflict with the rights enshrined in the Basic Law, thus calling for restrictions on the Supreme Court’s ability to intervene in laws that contradict constitutional or basic law principles.

In conclusion, it is clear that the repeated election cycles and the persistent political instability in Israel are directly linked to the country’s legal and judicial system. This connection further demonstrates that the political platforms of Israeli political parties, particularly those on the center-right and far-right, have become arenas for competitive electoral disputes, with ongoing efforts to pass racist laws and impose limitations on the Supreme Court to prevent it from intervening in these laws. It is also evident that the Supreme Court rarely intervenes to annul such laws, even if they are racist, as it often justifies these laws in terms of Israel’s emergency situation and the need to defend the state’s democracy, despite the fact that the Nation-State Law and the Supreme Court’s refusal to annul it have cemented Israel as a democracy for Jews only, while treating Arabs as a native minority.

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