Court ruling against Deri set to escalate, accelerate coalition assault on judiciary

The High Court’s almost unanimous ruling that Aryeh Deri cannot serve as a minister in Benjamin Netanyahu’s government was fairly unsurprising.

The Shas leader is a recidivist financial criminal, who was convicted of bribery in 1999, and, having served jail time and a required seven-year withdrawal from public life for moral turpitude, was only grudgingly permitted by the court to eventually return to ministerial office. Then, a year ago, he was convicted of tax fraud, and negotiated a plea bargain that allowed him a suspended sentence on the basis, as the Jerusalem Magistrate’s Court understood it, that he would be retiring from public life.

The High Court’s 10-1 decision on Wednesday afternoon, as set out by court President Esther Hayut, thus quite predictably described the restoration to ministerial rank of a man with his history of “very grave offenses… committed while in office” as “unreasonable in the extreme,” and found that Netanyahu’s appointment of him “contradicted the fundamental principles that should guide a prime minister in appointing his cabinet.”

Preempting the immediate chorus of condemnation from Deri’s defenders, including the assertion that the votes of hundreds of thousands of Shas supporters had been trashed by a panel of unelected, overreaching interventionists, making a mockery of Israeli democracy, another of the justices, Alex Stein, explained that the court had not chosen to prevent Deri running for the Knesset in November, but blocked him as a minister now, because the bar that ministers are supposed to clear is higher than that for mere MKs.

For all that it was widely expected, the judges’ ruling was nonetheless a bombshell, plunging Israel’s governance into a degree of chaos, and the open battle between Netanyahu’s majority coalition and the judiciary into still greater enmity.

Netanyahu, who drove across Jerusalem to Deri’s home in a show of solidarity soon after the ruling was published, presumably has no choice but to follow the court’s directive and dismiss Deri, who temporarily filled in as acting prime minister less than two weeks ago when Netanyahu was briefly sedated for a routine colonoscopy.

(The government will not fall, but the prime minister will have to rapidly fill Deri’s health and interior ministry posts. Ordinarily, they would initially revert to the prime minister. But Netanyahu, on trial in three corruption cases, is permitted to serve as premier but not as a minister.)

At the same time, Netanyahu and other coalition heads immediately pledged to find a path to return Deri to office. Justice Minister Yariv Levin, architect of a range of proposals that would render the High Court largely unable to intervene in legislation and government decisions, vowed “to do everything necessary to fully repair the terrible injustice done to Rabbi Aryeh Deri, Shas and Israeli democracy.”

The coalition may conclude that the court’s intervention will bolster public support for Levin’s program to radically weaken the judiciary. And it may be right.

One immediate idea floated in coalition circles was to expedite one part of Levin’s intended overhaul — denying the justices the right to use the legal concept of “reasonableness” as a tool for evaluating government and Knesset actions.

But the justices did not only overrule the Deri appointment as radically unreasonable. Many of them also invoked the principle of “estoppel,” determining that Deri had gone back on his word to the Jerusalem Magistrate’s Court regarding his departure from public life.

Thus, coalition sources quickly switched tactics to declare that the entire judicial overhaul would now be accelerated — and thus the justices would soon be denied the capacity to overrule any laws or decisions except in the most exceptional circumstances and only with a 15-0 decision.

The problem with this approach — as applied not only with regard to Deri, but with the entire judicial overhaul — is that the High Court justices can be relied upon to strike down the legislation that would so constrain them, thus elevating the current hostilities into a full-blown constitutional crisis.

Another idea quickly raised is for Netanyahu to appoint Deri as “alternate prime minister” — a powerhouse role that Naftali Bennett filled most recently in the previous Yair Lapid-led coalition. Just as Netanyahu is allowed to serve as prime minister despite his ongoing corruption trial, an alternate prime minister might also be allowed to hold office despite swirling criminal concerns.

To appoint Deri to this post, however, would apparently require the coalition voting itself out of office and then seeking to vote itself back in, a process that would also prompt a stream of legal challenges.

Potentially exacerbating the entire crisis is that Moroccan-born Deri and Shas have often presented themselves as the advocates and protectors of Israel’s Sephardi community from the high-handed discrimination of the Ashkenazi elites; Deri has previously cited his origins as the reason for his legal travails, asserting that he has been unfairly targeted. The only dissenting judicial voice Wednesday was that of Yosef Elron, the son of Iraqi immigrants.

Even Elron did not definitively approve Deri’s appointment, but rather advocated consulting with the head of the Central Elections Committee regarding the Shas leader’s eligibility for office.

Nonetheless, should Deri, Shas, and by extension Netanyahu, choose to portray the ruling as an example of ethnic discrimination, Elron’s dissenting ruling would provide a basis of sorts, potentially making the episode still more divisive for Israel’s riven electorate and its warring branches of governance.