Judge questions if Likud court overstepped authority in clash over party primary rules

Judge Yaakov Shaked did not issue a ruling at the end of the hearing, saying a written judgment would follow. The case was brought by Likud MK Afif Abed, who is seeking to overturn the internal tribunal’s decision ahead of the party primaries, which had been set for August 17.

The dispute is complicated by the way Likud builds its Knesset list.

Where each category appears is determined ahead of each election through temporary regulations.

Under the framework debated before this year’s convention, serving ministers, deputy ministers and MKs were barred from competing through the district route. A proposal backed by Likud Central Committee chairman Haim Katz and Netanyahu sought to change that.

On July 27, Likud Central Committee members voted on three proposals shaping the primaries. All three passed, including one giving Netanyahu eight reserved positions on the Knesset slate and another allowing serving MKs and ministers to compete in district races.

The latter passed by only a handful of votes, and challenges followed almost immediately.

At the outset of Monday’s hearing, Shaked focused on whether a civil court should intervene at all. Courts do not normally act as appeals courts over a political party’s internal tribunal, he said, except in unusual cases such as where the tribunal is alleged to have acted outside its authority.

Abed’s attorney, Guy Busy, argued that this was such a case.

His argument was not simply that the tribunal had reached the wrong conclusion, but that it had imposed a result it had no power to impose. If serious defects are found in an election, Busi told the court, the accepted solutions are to cancel the vote or order a new one.

The tribunal could not, he argued, effectively declare that the losing side had won without first establishing that the result itself was invalid.

Shaked repeatedly pressed the lawyers on that point: Had a majority of the Likud tribunal actually found the alleged irregularities serious enough to invalidate the July vote?

According to Shaked’s reading of the internal judgment, only tribunal member Yitzhak Bam had concluded that the voting defects themselves justified throwing out the result. The other four members had not made such a finding.

That left another issue at the center of the tribunal’s ruling: equality between candidates.

Section 139 of the Likud constitution describes party elections as personal, general, equal, direct and secret. Those defending the tribunal’s decision argued that allowing incumbent MKs and ministers into the district races undermined equality because they enter with advantages ordinary district activists do not have, including greater public exposure and access to publicly funded resources.

Shaked questioned that reading. He said the provision appeared to deal primarily with equality among voters, rather than requiring candidates to begin a race from equal positions.

Attorney Yair Gabay, one of the respondents, argued that the issue was whether public resources were available to one group of candidates and not another.

He also said the districts had long functioned as a route for party activists, who had prepared for the race on the understanding that incumbent politicians could not enter.

Shaked pushed back, noting that the Likud constitution does not expressly state that MKs or ministers may not compete in the districts.

The hearing then turned to the scope of the tribunal’s authority.

Sections 124 and 125 of the constitution give it broad power to hear disputes involving party members and institutions. But Shaked pointed to Section 126, which appears to prevent the tribunal from determining the movement’s policy.

He asked why deciding who may compete in the districts was not, at its core, a policy choice for Likud itself.

Likud attorney Ilan Bombach, who opposed the tribunal’s judgment, made a similar argument. He said the tribunal had been involved in shaping and approving the primary rules before the convention vote and could not then, after the result was known, use its judicial authority to decide how the party should structure its slate.

Gabay argued in response that the tribunal’s mandate also includes protecting the interests of the movement and district candidates who had prepared under the existing rules.

The respondents also insisted that the alleged irregularities surrounding the July 27 ballot could not be separated from the result.

Bitan’s attorney, Yifat Meirovitz-Yefet, pointed to claims involving observers, missing ballots and invalidated votes. Other respondents argued that missing envelopes meant a recount could not resolve the problem and that a fresh count was no longer realistic given the timetable.

Shaked, however, repeatedly distinguished between evidence that irregularities may have occurred and a finding that they justified invalidating the result. He said he could not identify a majority of the tribunal that had made the latter finding.

Busy responded that even if defects were proven, that still did not answer the question of remedy. A faulty election could be rerun, he argued; it did not follow that a judicial body could substitute the losing outcome for the winning one.

Busy also offered a narrower way to end the case: If Abed were permitted to compete in the Galilee and Valleys district, he said, Abed would withdraw the lawsuit. No agreement was reached.

The question left for Shaked is therefore not simply whether serving MKs and ministers should be allowed to run in district races, but who within Likud had the authority to decide that question and whether the party tribunal crossed that line after the vote.

The hearing ended without an oral ruling. Shaked said his judgment would be delivered to the parties.