The legality of haredi participation in elections

According to a survey  conducted by  the Maagar Mohot Institute  on behalf of Hayom –i24 on August 25,  the outcome of  Israel’s forthcoming election  will  be determined in the light of the fact that only 61% [with a margin of error of 4%] of Israelis plan to vote.

In the light of this anticipated scenario, Dov Lipman  raised the question  as to whether  this will result in the electoral surge of Israel’s religious parties.

This led me to raise the question whether, as a matter of fact and law, the participation of the haredi in the electoral and governance process is legitimate?

Based on my reading of the Basic Laws regarding the Knesset and Government, I reached the conclusion that it is not.

2.1. The right to vote

Section 5 of the Basic Law: The Knesset, 1958, as amended, reads:

“Every Israeli citizen of or over the age of eighteen years shall have the right to vote in elections to the Knesset, unless a court has deprived him of that right by virtue of any Law.”

The haredi  while praying for the arrival of the Messiah reject  a) the existence and legitimacy of a pre-Messiah State of Israel and, by implication, its citizenship of the country.

Their exercise of this right is contrary to and constitutes a fundamental violation of their religious beliefs.

2. Running for office- the Knesset
3. On the same reasoning, the haredi cannot to run for the Knesset, an organ of the State of Israel.  Section 7A, paragraph1 of the same law (amendments 9, 35 and 39) which reads:

7A. A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following if the objects or actions of the list or actions of the person, expressly or by implication include one of the following:

• negation of the existence of the State of Israel as a Jewish and democratic state
• ….
• ….

In the light of the haredi’s refusal to recognise the religious legitimacy of the pre-Messiah State of Israel, surely paragraph 1 of the section 7A would disqualify them from running for a seat in the Knesset.

The legal obstacles to running for the Knesset are compounded   by the provisions of sections 15 and 16  of  the Basic Law that provide:

15. (a) A Knesset member shall make a declaration of allegiance as follows:

 “I pledge myself to bear allegiance to the State of Israel and faithfully to discharge my mandate in the Knesset;

      (b) Arrangements for the declarations shall be set by law. (Amendment (23)

16. A. If the speaker of the Knesset has called upon its members to make their declarations of allegiance and a member has not done so, that member shall not enjoy the rights of membership as long as he has not made the declaration.

In making the foregoing submissions, I note paragraph 15(b). In regards to this provision, I confess that Ithat I do not know whether the nature of the arrangements includes the modification of the statestatement of allegiance to suit the haredi.

In my  opinion,  the unambiguous  core provisions of a Basic Law cannot be amended by subsidiary legislation

3. Becoming a Cabinet member 

Finally, Basic Law: The Government, 1968, as amended, requires the haredi  selected to sit in the Cabinet to comply with the following provisions of section 16 which provides

16. As soon as, or as soon as possible after  the Knesset has expressed confidence in the Government… each … the …Minister [s] shall make the following declaration of allegiance:

“I (name) pledge myself as a member of the Government to bear allegiance to the State of Israel and to its laws, to carry out faithfully my functions as a member of the Government and to comply with the decisions of the Knesset.”

This section, unlike paragraph 15(b) of this Basic Law- Knesset, does not provide for any arrangements.

Surely, one need not be a Jewish religious scholar to know that in order to vote, run for the Knesset and join the Cabinet; the haredi must commit perjury; a fundamental breach of the Torah. As Rabbi Jack Abramovitz of the Orthodox Union puts it:”…He warns us in the Torah to distance ourselves from every false matter (Exodus 23:7).”

The failure of the successive  governments or of the Israeli Electoral Commission, as the case may be, to revoke the first two rights, and  of the Prime Ministers  to deny the haredi a seat at the Cabinet table is surely inconsistent with two of the fundamental  guiding principles of democracy; namely: the rule of law and the government’s duty to act in good faith.