Supreme Court Replaces Law With Political Acrobatics

The court's decision in the Bishara case seems to fly in the face of Israeli law, which states specifically that a party or candidate that denies the right of Israel to exist as a Jewish state must be disqualified from running for the Knesset. Israel's Attorney General, Elyakim Rubinstein, relying on that law, successfully convinced the Elections Commission to disqualify Bishara and Balad from ru

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צילום: ערוץ 7
The Supreme Court's controversial decision to allow Azmi Bishara, Ahmed Tibi, and Baruch Marzel to run for the Knesset, while disqualifying Defense Minister Shaul Mofaz and Moshe Feiglin from running on the Likud list, has become the focus of heated debate across the political spectrum.

In a surprising and unprecedented move, the Supreme Court has ruled that a candidate or a political party running on a platform denying Israel's right to exist as a Jewish State is a legitimate choice for the Israeli electorate. The candidate, Azmi Bishara, and his party, Balad, are in favor of replacing the State of Israel with a state "of all of its residents" that has no specific identification with the Jewish People. Bishara has even stated publicly that, in his opinion, there is no such thing as a "Jewish People".

The court's decision in the Bishara case seems to fly in the face of Israeli law, which states specifically that a party or candidate that denies the right of Israel to exist as a Jewish state must be disqualified from running for the Knesset. Israel's Attorney General, Elyakim Rubinstein, relying on that law, successfully convinced the Elections Commission to disqualify Bishara and Balad from running for the Knesset.

The Supreme Court's interpretation of the law is, at best, incomprehensible from a legal standpoint. Not only do Bishara and his party platform oppose the existence of a Jewish State, they openly identify with terrorism and support terrorist groups who have taken up arms against the State of Israel and its Jewish residents. Aside from his support for the terrorist groups fighting the Oslo War, which has already claimed the lives of over 700 Jews, Bishara has stated many times that he backs the Hizbullah, a group many U.S. officials consider to be more even dangerous than al-Qaeda.

The court's seven to four decision to allow Bishara to run is also hard to reconcile with the fact that Bishara himself has made a mockery of the "rule of law". Overtly defying the law, Bishara flew to Syria, an enemy State, in order to attend a ceremony commemorating the death of former Syrian president, Hafez Assad. The State's Attorney has indicted Bishara for this offence, and for provocative statements he made while in Syria in support of the Hizbullah.

Even more difficult to reconcile is how the court, on the one hand, found Bishara and his acts to be legitimate political expressions, but on the other hand, determined that Moshe Feiglin's conviction in connection with his civil disobedience against the Oslo accords was an act stained with "moral turpitude", disqualifying his candidacy.

Was the court actually trying to engage in a political balancing act, using the law a mere backdrop for its decision? Keeping Bishara, Tibi, and Marzel in, while kicking out Mofaz and Feiglin may have a certain acrobatic elegance. But it should come as no surprise that political parties on the right are now calling for the court itself to be disqualified and replaced by a legitimate constitutional court, whose judges are selected democratically, with Knesset supervision and approval.

Such a constitutional court will likely perform the required acrobatics in a more logical, though potentially less elegant way, without causing the audience to lose its breath, and without compromising its moral soul.
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Shabtai Alboher is a former legal counsel in the office of the IDF Judge Advocate General.