Simon Jackson
Legal Advisor to Torah Mitzion
In 1984, an appeal was made to the Israeli Supreme Court over the decision of the Central Elections Committee to reject applications by two party lists (the extreme right-wing Kach party list, and the extreme left-wing Hareshima Hamitkademet Leshalom list) to take part in elections to the Eleventh Knesset.
In an enlightening judgment, the Court accepted the appeals and allowed the two party lists to run for the Knesset. The judgment is worth reading in full, particularly the words of Justice Menachem Elon:
“There is, I think, no more striking and thorough-going expression of freedom of thought and the importance of every point of view, even that of the individual, than the principle laid down by the Sages regarding the dispute between the schools of Hillel and Shammai: “The utterances of both are the words of the living God” (Eruvin 13b). For practical purposes, the binding norm of the halakha lies with the school of Hillel, “because they were felicitous and patient to their fellow human beings, even to those who disagreed with their views.” Even so, the views of their rivals remain legitimate and substantive in the world of halakha…
Even after the Sanhedrin, the highest national court, had decided against him, the “rebellious elder” could continue to adhere to his views and teach them as before so long as he did not give any practical decision accordingly (Sanhedrin 86b). Furthermore, there is always the possibility that a minority view might in time prevail and become accepted in practice. “R. Yehudah said: The words of the individual among the many were recorded in case their time would come and they would be relied on” (Eduyot 1:4)…
Pluralism is a substantive and welcome element in the life of every civilized society. The Sages even drew up a special beracha for this wonderful creative power of pluralism. “One who sees a very large crowd of people makes the beracha: “Blessed be He who discerns secret things, for their features are dissimilar and their views unlike” (Berakhot 7:5 and 58a). A similar beracha is found for creative wisdom: “Just as creative nature renders the appearance of men different, so it is to be believed that wisdom is shared by all men, each different from the other” (Hayim b. Betzalel, Mayim Hayim, Introduction). Diversity of opinion is to be honored properly by the dominant authority…
This is the theory of leadership and government in Jewish tradition… that is the great force of the right of each to express his opinion since not only is that essential to orderly and enlightened government, but it is also vital to its creative power…
When out of the various opinions… one view emerges that may damage the social, spiritual and cultural foundations of society, that society must stand steadfast in its spirit and outlook. This end is primarily to be achieved by persuasion and education. Education does not mean mere preaching to those who have strayed from the proper path but also self-examination and questioning of the spiritual and cultural image of the society in which the thistles and thorns have grown…
Civilized society will employ, when necessary, the legislative powers available to it to punish those who incite and encourage an evil cultural perception that threatens it. Thos who merit punishment, those in respect of whom all the requirements of the law regarding proof of their offences have been fulfilled, will be legitimately punished… However, denial of so basic a right, in our democratic form of government, is not left to the courts without it first having been expressly empowered in that regard by the Knesset. For a court to take such power into its own hands without the Knesset’s express consent is in itself injurious to an enlightened democracy.
The democratic character of the State of Israel was proclaimed in the Declaration of Independence in the affirmation that the State of Israel will be a Jewish state (and not merely a state of Jews), a state open for Jewish immigration and the ingathering of the exiles (realized later in the Law of Return, 1950), and ensuring complete equality of social and political rights irrespective of religion, race or sex and guaranteeing freedom of religion, conscience, language, education and culture. These principles also serve us as a guide. They form part of the special character of the Jewish state.
My colleague, Justice Barak, observes that invalidation of a party list because its election program is inconsistent with the democratic principles on which the State of Israel is founded will only occur if a reasonable possibility exists that the will of those on the list will be realized… According to what directives and rules is the court to decide what to do?… What I have said may indicate the abundance of problems and difficulties that are foremost in considering the disqualification of a party list because of its political program.”
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[Background Note: When the Kach movement submitted its list for the 1984 Knesset elections, the Central Elections Committee ruled that it could not participate in the elections. Kach appealed to the High Court of Justice, and its appeal was upheld. The court ruled that the existing electoral law did not allow for the debarring of a party on the grounds of racism. The Court further suggested that the law be amended. The Kach movement thus ran for election in 1984, winning 26,000 votes, and Meir Kahane, the leader of the movement, became a member of Knesset. He announced that Kach would not support any government that did not advocate the expulsion of the Arabs from Israel.
In August 1985, the Knesset passed an amendment to the Basic Law: The Knesset, in accordance with the High Court’s comment in the Kach case. The amendment added “opposition to the democratic character of the State of Israel” and the “incitement to racism” as grounds for barring a party from participating in elections. Accordingly, in 1988, prior to the elections to the 12th Knesset (and later in the 1992 elections), the Central Elections Committee disqualified the Kach list, basing its decision on the above amendment. In his appeal to the High Court of Justice, Kahane claimed that security needs justify severe measures of discrimination against Arabs. The Court rejected the claim and the appeal, stating that the aims and actions of Kach were manifestly racist].
