Can Liberman Curb Supreme Court's Powers?

After allowing MK Zoabi to run, Yisrael Beytenu head wants to clip the Court's wings; expert says he's got his work cut out.

Gedalyah Reback ,

Avigdor Liberman
Avigdor Liberman
Ben Kelmer/Flash 90

Avigdor Liberman is not the only member of the Knesset who was unhappy with the Supreme Court decision to reinstate Hanin Zoabi as a candidate in the election (not to broach the topic of Baruch Marzel), but he was the first to say in response that the next Knesset ought to legislate parameters for the Supreme Court in order to regulate their “disgrace to democracy” in overturning an Election Committee decision to disqualify Zoabi.

Many Israelis in the center and right of the political spectrum have said for years that the Israeli Supreme Court crosses the line when it comes to power. Moshe Koppel, Director of the Kohelet Policy Forum, has been a bilingual advocate for a renewed “balance of power” between the judicial branch – the courts – and the legislative branch – the Knesset.

Vice Director of Kohelet Policy Forum, Ran Bar-Yoshafat (who once worked in the Legal Department at the Knesset) considered the viability of Liberman’s idea.

“I can’t see the Legal Committee going for it. It would not be worth much because if you legislate anything the Supreme Court is able to disqualify it.”

The Supreme Court, as in places like the United States, has the power of judicial review. The Court’s Justices have the right to determine the constitutionality of legislation. In Israel’s case, some argue the Supreme Court has a much stronger ability to overturn government decisions, legislation included.

“Politics is not my field, but I can’t see it as a serious proposal.  It’s a bit naïve considering how difficult it would be to muster support” and, by extension, not have such legislation challenged.

Basically, anything short of one of Israel’s de facto constitutional amendments – a Basic Law – would be vulnerable to the very same judicial review that allowed the Supreme Court to overturn the Election Committee’s decision in the first place.

While he was quick to say he understood what was likely the underlying perspective of the court - that they wouldn't want the ability to disqualify candidates abused - Bar-Yoshafat noted that just because Liberman’s idea might not have traction, did not mean he was not onto something.

“There is something very peculiar about the Supreme Court’s decision, because it implies they have certain information that the lawyers who were arguing the case didn't."

The existing law, he noted, is very clear that "if someone expressed opinions over and over again that undermine the principle of Israel being a State of the Jewish people, then he (or she) can’t run."

There are several more far-reaching methods, says Bar-Yoshafat, that would be far more efficient and have a chance of success than regular legislation. On the issue of Zoabi in particular, he suggests that were the Basic Law defining Israel as the Nation-State of the Jewish People (as proposed by the last government) to be implemented, it would “give the Supreme Court another tool in rendering its decisions, one that the court would have to address” once that definition were made more explicit.

Another approach is the more constitutional issues of how Supreme Court justices are appointed, or explicitly defining the limits of their jurisdiction.

On appointments, it’s important to note that the Supreme Court in Israel replaces itself, without any democratic oversight. Justices simply nominate their own replacements. The Knesset is not involved, far removed from a process akin to what is done in places like the US, where the President nominates the judges and the Senate votes on them.

“When people can decide, you can avoid something more tyrannical. The US way of doing things is not necessarily the best solution.”

“You have to remember, if the Knesset were responsible for appointments, you would see nominations determined in coalition deals. You might solve one problem, but you won’t always get the most qualified judges sitting on the Court.”

Bar-Yoshafat, who studied law at Hebrew University, still found it unfair that so many of the Court’s Justices came from that school, narrowing the legal perspectives that appeared on the court.

Still, he was hopeful that if the Supreme Court is indeed too powerful, a change to the Basic Law could pose a doable solution.

“We can legislate a Basic Law – which means we will have a broad consensus in Israel – a consensus that that the Supreme Court cannot simply overrule.”