Party Disqualification Law: Court Power Battle

Last week, a preliminary reading passed for a bill amending Article 7A of the Basic Law: The Knesset, which addresses the disqualification of parties and candidates for the Knesset. The proposal, submitted by MK Ofir Katz from Likud, introduces a series of significant changes to the disqualification rules.

According to the proposal, parties and Knesset members can be disqualified for supporting an “individual terrorist,” not only terrorist organizations. Additionally, the criterion for supporting armed struggle has been expanded to include support for struggles against Israeli citizens. Another major change is the elimination of the requirement for a “critical mass” of evidence— a requirement that has developed in Supreme Court rulings over the years.

The proposed amendment also allows for the disqualification of a party running as part of a “joint list.” The change that many view as the “highlight” of the proposal is that disqualifying parties and Knesset members by the Central Elections Committee would no longer be subject to Supreme Court approval, although it would still be open to appeal.

At first glance, the proposed bill raises deep concerns. It could undermine one of the fundamental principles of democracy—the right to vote and be elected. The fact that the coalition, holding a majority in the Knesset, is the one promoting these changes, raises twofold concerns: firstly, that the law aims to reduce the participation of Arab parties in the Knesset; and secondly, that by disqualifying parties and Knesset members who are not political allies of the coalition, the government seeks to secure its continued rule.

However, a closer political analysis raises questions about this narrative. The test case of the disqualification of the Balad party in the last election provides a surprising insight: the current coalition leaders actually opposed the disqualification of the party. Why? They understood that Balad’s participation could serve their interests—if the party were to run but fail to pass the electoral threshold, it would lead to a “waste” of votes within the Arab-left bloc. And indeed, that is exactly what happened: after the Supreme Court overturned the Central Elections Committee’s decision to disqualify Balad (a decision supported by parties in the so-called “national camp,” such as Yisrael Beiteinu and Yamina), the party ran, did not pass the threshold, and thus indirectly contributed to the formation of the current government.

But to truly understand the significance of the proposed law, we must move beyond political analysis and examine the broader constitutional context. The central question is: who truly stands to be affected by this amendment? The Arab parties? The opposition? Or perhaps an entirely different group?

The answer lies in the legal history of party disqualification in Israel. The first turning point occurred in the 1960s, with the landmark Yeredor ruling. At that time, the Supreme Court established a dramatic principle: the Central Elections Committee has the authority to disqualify parties even without explicit legislation permitting it. However, in later rulings, the Court sought to curb this power. It ruled that such a dramatic authority must be anchored in a Basic Law—especially regarding the Central Elections Committee, which is fundamentally a political body.

Here, the true story behind the new law begins to unfold. The proposed amendment not only expands the grounds for disqualification (for example, allowing disqualification based on support for an individual terrorist) but also aims to alter the balance of power that has evolved over decades between the political body (the Central Elections Committee) and the judicial body tasked with overseeing it.

In response to the Supreme Court’s ruling, the Knesset amended the Basic Law: The Knesset, establishing three main grounds for party disqualification: negation of Israel as a Jewish and democratic state, incitement to racism, or support for armed struggle against the state. The law also introduced an important distinction: while party disqualifications can be appealed to the Supreme Court, the disqualification of individual Knesset members requires prior approval by the Court.

Over the years, recognizing that the Central Elections Committee is a political body, the Supreme Court developed a rigorous set of “subtests.” For instance, it established that a “critical mass” of evidence is required and that a single statement or one-time act is insufficient. The Court demanded unequivocal proof that prohibited actions are part of the party’s core objectives, not merely incidental occurrences.

And here lies the true message of the new law. The Knesset is essentially telling the Supreme Court: “You have overly restricted the grounds for disqualification in your interpretation. You have taken too much discretion upon yourselves. This time, we intend to reclaim that discretion over disqualification matters and place it within the legislative authority.” And the way to achieve this? Through Basic Law legislation.

This initiative becomes even clearer when examining the difference between “appeal” and “approval.” Currently, in cases of individual Knesset member disqualification, the Supreme Court is an integral part of the process—its prior approval is required. In practice, this broad authority has resulted in very few cases of individual disqualifications. The new law seeks to change this and significantly reduce the Supreme Court’s authority to intervene.

The third layer of the new law addresses the issue of joint lists, which also reveals an interesting story. Several years ago, when the question of disqualifying Balad as part of the Joint List was debated, the Supreme Court was divided into two approaches. Then-Chief Justice Esther Hayut and the Attorney General held that a party running in a joint list could not be disqualified; instead, the Joint List itself should be evaluated, or individual Knesset members could be disqualified within the list. In contrast, Justice Solberg argued in a minority opinion that a joint list could not serve as a “safe haven” for a party that would have been disqualified if it ran independently.

Now, the new law adopts Justice Solberg’s minority opinion—in a similar manner to the recent amendment that removed the reasonableness grounds, where it was claimed that the bill was based on his position. This is no coincidence. This is a consistent pattern in which the constituent authority seeks to limit or alter the Court’s decisions by restricting its powers and discretion.

The conclusion is complex: although the law may harm Arab parties and Knesset members, it is evident that one cannot trust political actors not to misuse the newfound power granted to them. However, a sober political analysis suggests that the real aim is not necessarily the disqualification of Arab parties—politically, this might actually harm the current coalition. The true goal is a dramatic reduction in the power of the Supreme Court, just as was done with the removal of the reasonableness grounds.

And here lies the real danger: will framing the law as “harming Arabs” during such a complex period “lull” the liberal public? Will it divert attention from the systemic damage being done to Israeli democracy? These questions become especially urgent in light of the fact that, regarding the reasonableness grounds, it was argued that constitutional change was pushed through by a temporary majority amid public protest. In this case, the coalition may be attempting to find a mechanism that undermines the separation of powers, framing the law as one targeting “Arabs” or “terror supporters,” hoping to gain implicit “approval” from the opposition and the public.