ISRAEL AT WAR - DAY 140

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Deri: 'I trust High Court to hear the voices of the voters'

AG: Deri’s appointment as minister ‘unreasonable in the extreme’

Gali Baharav-Miara argues that Shas chief’s membership in cabinet would do ‘severe damage to public trust in ethical conduct of elected officials’ due to past criminal convictions

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Attorney General Gali Baharav-Miara at her inauguration ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90)
Attorney General Gali Baharav-Miara at her inauguration ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90)

Attorney General Gali Baharav-Miara informed the High Court of Justice on Wednesday that she strongly opposes the appointment of Shas leader Aryeh Deri as a government minister, saying his past criminal convictions, including one less than 12 months ago, should bar him from office.

Baharav-Miara’s opposition to Deri’s appointment was expected after she announced Tuesday that she would not defend him or Prime Minister Benjamin Netanyahu against three High Court petitions calling to disqualify the ultra-Orthodox party chief from serving as a minister.

Deri for his part said Wednesday that he trusted the High Court to hear the voices of the “over 2 million Israeli citizens and 400,000 Shas constituents who want to see me as a minister in this government.” Netanyahu’s legal team argues that his appointment is crucial to government stability.

In her filing to the court in response to the petitions, Baharav-Miara through the State Attorney’s Office argued that Deri’s appointment as interior minister and health minister after repeated criminal convictions “exceeds in the extreme the boundaries of reasonableness,” and that the court should therefore annul the prime minister’s decision to install him as a cabinet minister.

The attorney general was of the opinion however that the court should not intervene against legislation passed to enable Deri to take up these roles. She argued that since the law amended by the coalition for this purpose was a Basic Law, which has quasi-constitutional status, the court should demonstrate greater caution in exercising judicial review over such legislation.

The petitions against Deri’s appointment, brought by the Movement for Quality Government, the Movement for Ethical Behavior and a group of private individuals, argue that his 2022 conviction on tax fraud charges, as well as his conviction in 1999 on bribery charges, make his appointment “unreasonable.”

Interior and Health Minister Aryeh Deri at a ceremony of the incoming minister of Social Affairs Yaacov Margi (not seen), at the Social Affairs Ministry in Jerusalem on January 1, 2023. (Yonatan Sindel/Flash90)

In addition, the petitions argue that the bill recently approved by the new coalition amending Basic Law: the Government to allow Deri to be appointed was illegitimate since the law was passed due to the political considerations of an individual politician and the new government.

A hearing on the petitions is scheduled for Thursday morning.

Baharav-Miara wrote in her response to the High Court that the issues at hand touched on critical aspects of the country’s system of government, including the ability of the Knesset to legislate laws of a constitutional nature, and the status of the rule of law.

She noted that Basic Law: the Government was originally legislated without any reference to, or intention to assist, any particular individual, but that this was manifestly not the case in the recently passed amendment.

The government’s amendment passed last month changed the Basic Law in a way that means that Deri can be appointed to a cabinet portfolio despite having received a 12-month suspended jail sentence in February 2022 that is yet to expire.

The attorney general said the petitions against the Basic Law amendment should be rejected since “there is no legal cause for judicial review” over the legislation.

She did argue that the amendment raised “substantial difficulties” since it was designed on a “personal” basis to assist Deri and to be implemented immediately in order to pave his way into ministerial office.

Prime Minister Benjamin Netanyahu with Minister of the Interior and Health Aryeh Deri (left), and Justice Minister Yariv Levin (right) during the swearing-in ceremony of the new Israeli government at the Knesset on December 29, 2022. (Yonatan Sindel/Flash90)

The attorney general wrote that the relevant judicial doctrine for such a law was the misuse of constitutional authority doctrine, that is, the principle that laws of a constitutional, or quasi-constitutional, nature should not be amended on a narrow basis for short-term goals.

“Implementing this doctrine requires caution,” she said, since at stake was a Basic Law legislated by the Knesset, adding that case law thus far does not allow for the implementation of the misuse of constitutional authority doctrine regarding such laws.

Regarding the “reasonableness” of Deri’s appointment given his criminal convictions, Baharav-Miara said the prime minister has wide discretion when appointing ministers but that appointing Deri exceeded those boundaries.

She noted that in 2015 and 2016, the High Court opined that Deri’s appointment as a minister was at the edges of the boundaries of reasonableness, bearing in mind his 1999 conviction for bribery.

The attorney general argued that since that time Deri has been convicted once again, this time on criminal charges of tax fraud which would be considered by a court as having the status of moral turpitude, his appointment should be disqualified.

“These crimes… in the eyes of the attorney general, move Deri’s appointment as a minister beyond the boundaries of reasonableness, which means to say to a place in which his appointment is unreasonable and cannot be approved,” wrote Baharav-Miara.

Shas party chairman Aryeh Deri after being sentenced in a plea bargain for tax offenses at the Jerusalem Magistrate’s Court on February 1, 2022. (Yonatan Sindel/Flash90)

“The appointment at this time of Minister Deri to the distinguished position of cabinet minister, less than a year after he was convicted and was given a suspended jail sentence, will bring about a severe damage to public trust in the ethical conduct of elected officials.”

She conceded that, as argued by Netanyahu’s independent legal counsel, Deri’s role as head of a party that garnered eleven Knesset seats, and the Knesset’s vote of confidence in the new government which includes the Shas leader should be taken into account.

She said however that not enough weight had been given to Deri’s repeated criminal convictions.

“It [his appointment] therefore exceeds in the extreme the boundaries of reasonableness and we believe it should not be accepted,” wrote the attorney general.

Responding to Baharav-Miara’s legal opinion, Deri thanked her for “disproving the false accusations made against me in recent weeks that argued that I had manipulated the court.”

“The attorney general has confirmed in her response that I never committed to retiring from public life for good and that I did not violate the plea deal or manipulate the court when I quit the 24th Knesset,” Deri wrote on Twitter.

He added: “I trust the High Court in Jerusalem to convene tomorrow in an expanded panel of 11 justices and hear the voices of over 2 million Israeli citizens and 400,000 Shas constituents who want to see me as a minister in this government.”

On Tuesday, Netanyahu’s legal team filed a response to the High Court laying out why Deri should and must hold a ministerial job in the new government.

The last four years of political instability, during which time five elections were held, had led to “unprecedented circumstances” which required the prime minister to restore political order, the prime minister’s lawyers argued.

“There is no way to bring about governmental stability without appointing the leader of the Shas party to a ministerial portfolio,” claimed Netanyahu’s legal team.

Tobias Siegal contributed to this report.

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