But Baharav-Miara to defend legislation enabling appointment

AG refuses to defend government in court against petitions over Deri’s appointment

Netanyahu argues to High Court that it lacks authority to review Basic Law enabling Shas head’s appointment or to interfere in PM’s discretion to make him interior, health minister

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

Attorney General Gali Baharav-Miara (left) in Tel Aviv, July 5, 2022; Shas head Aryeh Deri in Jerusalem, September 12, 2022. (Avshalom Sassoni/Flash90; Yonatan Sindel/Flash90)
Attorney General Gali Baharav-Miara (left) in Tel Aviv, July 5, 2022; Shas head Aryeh Deri in Jerusalem, September 12, 2022. (Avshalom Sassoni/Flash90; Yonatan Sindel/Flash90)

In a rare step, Attorney General Gali Baharav-Miara announced Tuesday that she will not defend the appointment of Shas leader Aryeh Deri as interior minister and health minister in High Court of Justice proceedings, in which petitioners are seeking to annul his ministerial roles because of his multiple past convictions.

The decision amounts to a strong reprimand by the attorney general to the government, and demonstrates her strong opposition to Deri’s appointment.

The move comes against the backdrop of already highly strained relations between Baharav-Miara and the new government, with the former having publicly criticized the legislative agenda of the new coalition and members of the latter having loudly condemned her for the comments.

In a filing to the High Court, the Attorney General’s Office informed the court that after having spoken with Prime Minister Benjamin Netanyahu on the matter earlier this week, “the attorney general decided she cannot defend his position regarding the appointment of MK Deri to the position of interior minister, health minister and deputy prime minister.”

The office noted that the attorney general has, however, allowed Netanyahu and Deri to employ external legal counsel for defending Deri’s appointment in the High Court.

It also said Baharav-Miara would represent the government against a separate demand by the petitioners to annul legislation passed last month that enabled Deri’s appointment despite his recently being sentenced to a suspended sentence.

The attorney general is the government’s chief legal adviser and usually represents the state and its ministries in legal proceedings against government action.

Instances have occurred in the past when the attorney general has refused to do so, but they are exceedingly rare. One such case occurred when former attorney general Avichai Mandelblit refused to defend a 2017 law retroactively legalizing West Bank settlements built on private Palestinian land.

Several NGOs have submitted petitions to the High Court against Deri’s appointment as a cabinet minister, arguing that his 2022 conviction on tax fraud charges, as well as his conviction in 1999 on bribery charges and a third conviction of breach of trust from 2003, make his appointment “unreasonable.”

Head of the Shas party Aryeh Deri arrives for a court hearing at the Jerusalem Magistrate’s Court on February 1, 2022. (Yonatan Sindel/Flash90)

The petitions also argue that the legislation recently passed by the new government, amending one of Israel’s quasi-constitutional Basic Laws to allow Deri to be appointed, was illegitimate since the law was passed due to the political considerations of an individual politician and of the new government.

The Attorney General’s Office did not detail Baharav-Miara’s reasons for declining to defend Deri’s appointment, but will do so in a formal response to the court which she will file on Wednesday.

According to several reports Monday, the attorney general believes that Deri’s past criminal convictions mean his appointment as cabinet minister is unreasonable, although she will oppose the petitions’ contention that the amendment to the Basic Law is illegitimate.

Later on Tuesday, Prime Minister Benjamin Netanyahu, who is the principal respondent to the petitions, filed his legal response to the court, in which he requested that the High Court reject the petitions against Deri’s appointment and against the law change that enabled it.

Netanyahu’s response was filed by a team of independent attorneys, owing to Baharav-Miara’s refusal to defend the government’s position.

In it, Netanyahu’s legal team argued that the court had no grounds to intervene in the appointment of government ministers and that the new legislation was legitimate.

Shas leader Aryeh Deri (R) speaks with Likud chief Benjamin Netanyahu (top L) and Likud MK Yariv Levin (bottom L), during Levin’s election as Knesset speaker, December 13, 2022. (Yonatan Sindel/Flash90)

Specifically, Netanyahu’s defense asserted that the legislation, an amendment to Basic Law: The Government, could not be challenged by the court since it was passed by the Knesset in its role as a constitutional authority.

Before the Basic Law was amended last week, it stipulated that someone given a prison sentence in the past seven years could not serve as a government minister unless a judge had ruled it does not carry “moral turpitude,” though it did not specify whether this included a suspended sentence or just a custodial sentence, meaning the interpretation is up for thw courts to decide.

Since Deri received a suspended sentence in his January 2022 conviction — in a lenient plea deal that was reached due to the judge being falsely convinced Deri was stepping down from public life — the matter was to be referred to the Central Election Committee headed by Judge Isaac Amit who was expected to rule against the Shas leader.

But the government’s amendment to the Basic Law expressly stipulates that only those who receive a custodial sentence should be banned from ministerial office, thereby obviating a referral to the Central Election Committee and paving the way for Deri’s appointment.

“The petitions must be totally rejected since there can be no interference in the legislation of Basic Laws by the Knesset in a manner which would constitute an irregular and unprecedented intervention by the honorable court in the Knesset’s role as a constituent assembly,” Netanyahu’s legal team wrote in its response to the court.

Netanyahu’s counsel also argued that the court is not entitled to exercise judicial review over Netanyahu’s decisions as prime minister or over the Knesset’s decision to express confidence in the new government and its ministers.

From left, ministers Yoav Gallant, Aryeh Deri, Benjamin Netanyahu, Yariv Levin and Eli Cohen in the Knesset on December 29, 2022. (Yonatan Sindel/Flash90)

“There is no basis for judicial intervention in the prime minister’s decision to appoint Deri as a minister due to the broad discretion given to the prime minister in the appointment of his cabinet ministers,” Netanyahu’s lawyers argued.

In addition, they contended that 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.

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

Former prime minister and head of the opposition MK Yair Lapid lambasted Netanyahu’s response, describing it as “totally absurd and completely false” in a tweet Tuesday afternoon.

“The circumstances of Deri’s appointment are not in any way ‘unprecedented circumstances,’ it is an utterly normal political process of establishing a coalition similar to many in the past, and the positioning of convicted criminals in key positions is the last thing that will bring about governmental stability,” wrote Lapid.

Following her request to the High Court on Tuesday, Baharav-Miara was given until Wednesday to file her response to the petitions. A hearing on those petitions is scheduled for Thursday morning. It will be broadcast live online.

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