In a highly charged six-hour hearing on Thursday, judges of the High Court of Justice questioned the legitimacy of Shas leader Aryeh Deri’s February 2022 plea bargain, in which he said he would quit the Knesset, only to return to it nine months later and get appointed a cabinet minister.
Hearing petitions against Deri’s appointment as interior and health minister, the High Court expressed significant skepticism regarding the legitimacy of the government’s political and legal maneuverings to allow Deri to serve as a minister once again, despite his recent criminal conviction.
The hearing took place under the shadow of Justice Minister Yariv Levin’s announcement on Wednesday night of his plans to radically overhaul the legal and judicial system. Under Levin’s intended reforms, the hearing on Thursday would likely not even be able to be held.
In one particularly sharp exchange, Justice Alex Stein took issue with the claims of Deri’s representative Navot Tel-Zur that the Shas leader’s appointment was “reasonable” since his bribery conviction happened over two decades ago and his tax fraud convictions last year were not for a “malicious” crime.
Stein and other judges pointed out that Deri’s relatively lenient suspended sentence was achieved through a plea bargain with the Jerusalem Magistrate’s Court in which Deri committed to resigning from the Knesset, and ostensibly from public life.
While Deri did resign from the Knesset, he ran as head of the Shas party in the November elections and has taken up the position of interior minister and health minister in the new government sworn in last week.
Tel-Zur argued, however, that there had been “a rare incident of misunderstanding” in Deri’s commitment and that the Shas leader had never intended to permanently retire from public life.
But Stein cited Deri’s statement in court on the plea bargain, in which he said he intended to continue to serve the public from outside the Knesset.
“One cannot say one is retiring [from public life] and get the benefit of a convenient plea bargain for oneself, and after a little while say the opposite and get appointed as an MK and minister,” asserted Stein.
Justice David Mintz continued Stein’s line of questioning, pointing out that the state attorney said in Deri’s presence in the Jerusalem Magistrate’s Court that Deri was retiring from political life.
“Deri did not get up and say that he did not intend to retire [from political life],” noted Mintz.
And Stein then interjected again, saying that if there had been a misunderstanding in the plea bargain then a decision of the Central Elections Committee should have been sought regarding the issue of moral turpitude rather than amending a basic law to legitimize Deri’s appointment.
“There is a misunderstanding regarding the length of the retirement, so now when everything is clear you need to go the Central Elections Committee if you are acting in good faith and want to return that which was mistakenly given to you,” said Stein.
Attorney Eliad Shraga, head of the Movement for Quality Government, which is one of the petitioning organizations, further emphasized this point in an indignant address to the court.
Shraga pointed to his organization’s petition last January in which it requested the High Court demand from the Jerusalem Magistrate’s Court that the plea bargain carry with it a determination of “moral turpitude,” which would bar Deri from serving in the Knesset or government.
“We said this would happen,” Shraga pointed out. “We said Deri’s pared-down plea bargain was extremely unreasonable… I tried to convince [the court] that it was all a deception, a trick. We are graduates of these courses in tricks and schticks,” said the attorney bitterly.
Deri was not in court on Thursday but the majority of Shas’s MKs were present for the hearing. It is not clear when the expanded panel of 11 justices will issue a ruling in the case, although it is unlikely to come on Thursday. It is possible that the justices will issue a ruling first and only later publish their full reasoning for the decision.
The justices focused their doubts on the integrity of a law passed to allow Deri to serve as a cabinet minister, on the reasonableness of appointing a recently convicted individual to high public office, and on the rectitude of his plea bargain in February 2022, while lawyers representing the Knesset and Prime Minister Benjamin Netanyahu argued Deri’s cause.
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.”
The petitions also argue that legislation recently passed by the new government amending Basic Law: The Government to allow Deri to be appointed was a misuse of the Knesset’s constituent authority, since the law was passed for the benefit of an individual politician and the immediate needs of the new government.
In defending the legislation, Nogah Goldstein, representing the Knesset, acknowledged that Deri’s February 2022 conviction on two counts of tax fraud was “a certain, or central, motivation” for the Basic Law passed by the new government to allow him to serve as a minister.
She argued, however, that the High Court does not have the authority to exercise judicial review over Basic Laws, which have quasi-constitutional status.
“There is no legislative source that authorizes [such judicial review],” argued Goldstein.
Justice Daphne Barak-Erez countered, arguing that “the court does have the authority to interpret the Basic Laws,” adding, “If something should not be in Basic Laws, then seemingly [the court has] authority.”
In response to the argument that the legislation was at heart designed to specifically assist Deri’s political needs, Goldstein argued that, regardless, the amendment was worded in a general and not a personal way and was applicable in the future to all ministerial candidates.
Justice Ofer Grosskopf interjected to note that Deri’s potential difficulties in being appointed a minister could have been resolved by appealing to the head of the Central Elections Committee, Justice Isaac Amit, and seeking a determination as to whether or not his tax fraud convictions constituted a crime of moral turpitude.
This would have been the usual path for Deri to take under the circumstances, but the coalition preferred not to ask the committee for a ruling, instead amending existing legislation.
“In order not to do that, they chose to amend a law — is that not personal?” Grosskopf demanded.
Goldstein responded by arguing that it is not particularly unusual, and in fact common, that political considerations are used when amending Basic Laws.
Barak-Erez said in response that the fact that the amendment was immediately implemented and not delayed until the next Knesset blunted Goldstein’s contention.
Michael Ravillo, pleading on behalf of Netanyahu, also sought to assert that the High Court has no authority to review Basic Laws, and noted that it had never done so until now.
Grosskopf took issue with this argument too, arguing that “if something is done with illegitimate motivations on an illegitimate basis, such as paying a bribe… there are situations in which the court does have the authority to say that this action cannot take effect… There is authority to annul legal actions done in an illegitimate manner.”
Ravillo went on to discuss the issue of the “reasonableness” of Deri’s appointment.
The petitions argue, and Attorney General Gali Baharav-Miara concurred, that Deri’s appointment despite repeated convictions, first in 1999 for bribery and again in 2022 for tax fraud, “exceeds in the extreme the boundaries of reasonableness,” and does severe damage to the public’s trust in the ethical conduct of elected officials.
Ravillo argued that it should be voters who determine what is reasonable with regard to ministerial appointments.
“More than two million voters said they want Minister Deri in the government,” Ravillo said, referring to Israelis who voted for parties in Netanyahu’s right-wing bloc. “The Shas movement itself received 400,000 votes. Can the reasonableness of the voter be annulled?”
Barak-Erez asked sharply whether “anything can be traded in the name of the majority.”
“What if he should get a tax exemption for a year, or receive a license to practice law even though he is not a lawyer, and two million [voters] wanted this? Can the majority make a determination in a criminal process?”
Justice Minister Levin, a member of Prime Minister Benjamin Netanyahu’s Likud party, on Wednesday presented a far-reaching proposal that would severely limit the authority of the High Court, give the government the ability to overturn court rulings, hand the government control over judicial selection, and significantly limit the authority of government legal advisers. If enacted, the proposal would amount to arguably the most extreme changes ever to Israel’s system of government.
Critics warn the planned moves will remove the judiciary’s role as a check on the power of the ruling majority. Proponents argue that court rulings overturning legislation or government decisions subvert the will of Israeli voters.
According to Levin’s proposals, the High Court will be explicitly prevented from deliberating and ruling on Basic Laws or on issues of reasonableness.
The Basic Laws have quasi-constitutional status but, unlike a formal constitution, most of them can be amended or even annulled by a simple majority, including the critical Basic Law: Human Dignity and Liberty.
The High Court has never struck down a Basic Law or an amendment to one, although it has intimated that it has judicial review over them in some circumstances.