In bombshell ruling, High Court nixes Shas head Deri from serving as minister

Bench finds 10-1 that Deri’s appointment to cabinet is both unreasonable due to past offenses and invalid due to false impression given in 2022 plea bargain that he’d quit politics

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

Minister Aryeh Deri attends a cabinet meeting at the Prime Minister's Office in Jerusalem on January 15, 2023. (Yonatan Sindel/Flash90)
Minister Aryeh Deri attends a cabinet meeting at the Prime Minister's Office in Jerusalem on January 15, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice ruled on Wednesday that the appointment of Shas leader Aryeh Deri as interior and health minister was “unreasonable in the extreme” due to his criminal convictions, most recently for tax fraud in 2022.

The dramatic landmark ruling added fuel to simmering tensions between the government and the legal community over plans to overhaul the judicial system. It sparked immediate calls by the ruling coalition to redouble the push for legislation intended to shackle the court’s ability to rule on government or Knesset decisions, while the opposition hailed the decision and called for Deri to immediately vacate his cabinet posts.

“The majority of the justices of the panel determined that this appointment is severely unreasonable, and as such the prime minister must remove him from his role,” said the High Court in a statement following the ruling.

In the 10-to-1 ruling, the court accepted the opinion of Attorney General Gali Baharav-Miara that Deri’s appointment did not pass a test for “reasonability” that courts can use to gauge government decisions.

Coalition members have vowed to pass a law prohibiting courts from overruling the government based on “reasonability,” but this will likely not be sufficient to overcome the ruling.

In response to the ruling, later Wednesday, Deri declared: “When they close the door on us, we’ll get in through the window. When they close the window we’ll break through the ceiling, with God’s help.” He vowed to “continue the revolution our predecessors began, with even greater devotion and energy.”

The petitions against Deri’s appointment, brought by the Movement for Quality Government, the Movement for Ethical Behavior and a group of private individuals, argued that his 2022 conviction on tax fraud charges, as well as his conviction in 1999 on bribery charges, made him unfit to be minister.

Because Deri was only given a suspended sentence by the Jerusalem Magistrate’s Court last year as part of a plea bargain, it was never determined whether the conviction carried moral turpitude, a finding that would have required him to sit out politics for seven years.

The High Court said Deri noted that as part of the plea deal, he had given the Jerusalem Magistrate’s Court the impression that he was retiring from political life. Deri nonetheless went on to head the Shas party’s Knesset slate in the 2022 elections.

President of the Supreme Court Esther Hayut (center) and colleagues hold a hearing on petitions demanding they block the return of Shas leader Aryeh Deri as a minister due to his recent conviction and suspended sentence for tax offenses, at the High Court in Jerusalem, January 5, 2023. (Yonatan Sindel/Flash90)

His claim that he was quitting the Knesset, and ostensibly politics, “influenced the criminal process regarding the tax fraud issue,” the High Court said. It indicated that he could not go back on testimony to the lower court due to the legal principle of estoppel, which prohibits parties to legal suits from changing claims in different proceedings.

The use of the estoppel argument may help insulate the ruling from being overturned should the government do away with the “reasonability” test in order to try to keep Deri in the cabinet.

Deri and other Shas MKs stated in recent weeks that they would pass any necessary legislation to overcome a ruling based on “reasonability,” with the intention of annulling the principle of reasonability and then having Deri reappointed as a minister which the court could then no longer annul.

But since five of the 10 justices who ruled that Deri must step down concurred that the estoppel doctrine was a separate cause for annulling his appointment, doing away with “reasonability” means the Shas leader would still be unable to serve as a minister.

Another possible means for the coalition to outflank the court ruling is for Prime Minister Benjamin Netanyahu to appoint Deri as an alternative prime minister, but this would likely require the government to dissolve itself and re-form within a framework which includes the structure required for an alternative prime minister.

Such maneuvering would create significant political difficulties for the government.

Following the publication of the ruling, Netanyahu drove to Deri’s Jerusalem home in a show of solidarity and to discuss their possible options in dealing with the political predicament.

Prime Minister Benjamin Netanyahu arriving at a meeting with Shas head Aryeh Deri outside the latter’s home in Jerusalem on January 18, 2023. (Yonatan Sindel/Flash90)

During a hearing on the petitions against Deri earlier this month, Deri’s attorney claimed that the Jerusalem Magistrate’s Court had misunderstood his statement that he was retiring from the Knesset and would henceforth perform public service from outside the parliament.

Several of the High Court justices took exception to this claim during the hearing itself, including Justice Alex Stein, who said at the time, “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.”

Justice Yosef Elron dissented from the majority opinion, writing instead that Netanyahu should request a ruling on Deri’s appointment from the head of the Central Election Committee to determine whether Deri’s tax fraud conviction bears the designation of moral turpitude and thus whether he can serve as a government minister.

The petitions against Deri’s appointment had also argued that legislation 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 amendment to the law was passed for the benefit of an individual politician and the immediate needs of the new government.

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

The court, however, declined to invalidate the Basic Law amendment, noting that striking down laws is a last resort and all the more so when dealing with Israel’s quasi-constitutional Basic Laws.

But some of the justices were of the opinion that the process of amending the Basic Law was tarnished by “a totally personal stain.”

Supreme Court President Esther Hayut wrote that although the court should only intervene in ministerial appointments in very exceptional circumstances, that bar were met by Deri’s appointment.

Hayut noted that the prime minister has wide discretion over political appointments and also observed that Deri and his Shas party “merited the trust of the public” during the last election when they received nearly 400,000 votes and garnered 11 seats in the Knesset.

“Nevertheless, wide discretion does not mean unlimited discretion,” she wrote, and some prime ministerial appointments were therefore subject to judicial review.

Hayut also pointed out that when the court was asked to decide on Deri’s appointment as interior minister in 2015, it had at that point said his appointment was even then “on the boundaries of what is reasonable” given his bribery conviction in 1999.

Shas supporters celebrate after exit polls showed the ultra-Orthodox party winning seats, in Tel Aviv, November 1, 2022. (Yossi Zamir/Flash90)

Deri received a suspended sentence for his tax fraud convictions in 2022, meaning that the appointment now exceeded the boundaries of reasonableness, she said.

Justice Daphne Barak-Erez’s written opinion addressed the issue of the false impression Deri gave to the Jerusalem Magistrate’s Court that he was stepping down from political life.

Barak-Erez’s pointed out that in Deri’s signed plea bargain with the court for the tax offenses, the court wrote that “we have recorded [Deri’s] announcement of his decision to resign from the Knesset, and therefore the attorney general will not request a determination of moral turpitude.”

She also noted that then-attorney general Avichai Mandelblit and his successor Baharav-Miara believed that his convictions did bear moral turpitude.

Barak-Erez pointed to a statement by Deri’s lawyer at the plea bargain hearing that “the public statement of the accused and his retirement from political life demonstrate” that he is speaking from the heart.

She also noted Deri’s own statement at the hearing that he “wants to continue to serve the public he represents in a different manner, even if it is not in the Knesset,” but that a day later he declared he would run for the Knesset in any upcoming elections as the head of Shas.

Barak-Erez wrote that the impression Deri gave to the court that he was quitting political life was given significant weight by the court when considering his punishment within the framework of the plea bargain, and that it was possible the court “would have been more strict in its punishment of Deri… if he would not have stated he was leaving political life for a long-term period.”

The justice stated that Deri’s behavior was therefore “a case of violation of the duty of fairness on the part of the individual – withdrawing from a clear presentation given in order to receive a benefit or relief in a criminal trial.”

She concluded by writing that as a result “estoppel is clearly applicable,” and that the practical implication of this is the establishment of legal obstacles to Deri’s tenure in a formal public position.”

Protesters against the planned judicial overhaul outside the President’s Residence in Jerusalem, on January 14, 2023 (Olivier Fitoussi/Flash90)

Reacting to the ruling, coalition parties accused the court of trampling on voters’ will.

“Today, the court effectively ruled that elections are meaningless. The court’s decision is political and tainted with extreme un-reasonability,” read a statement from Shas.

A statement sent by Likud and signed by the heads of coalition parties called Deri a “central and significant” part of the government and pledged to keep him in office.

“His extraordinary abilities and vast experience are needed by the State of Israel in these complex days more than ever,” the statement read.

Opposition party leaders, meanwhile, called on the government to respect the ruling.

“If Aryeh Deri isn’t fired, the government will be breaking the law,” opposition leader Yair Lapid said. Israel “will be thrust into an unprecedented constitutional crisis and will no longer be a democracy,” he warned.

“In a democracy, a court’s ruling is respected by the right and the left,” Labor chief Merav Michaeli said.

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