Top court demands MKs justify law allowing Deri as minister; won’t block it for now

Hours after Knesset amends Basic Law to enable Shas leader’s appointment despite suspended sentence, lobby group obtains court order requiring incoming government to explain move

Shas party leader MK Aryeh Deri seen during a vote in the Knesset in Jerusalem, on December 20, 2022. (Yonatan Sindel/Flash90)
Shas party leader MK Aryeh Deri seen during a vote in the Knesset in Jerusalem, on December 20, 2022. (Yonatan Sindel/Flash90)

The High Court of Justice issued an order Tuesday requiring the government to justify a law passed hours earlier in the Knesset enabling Shas party leader Aryeh Deri to become a minister despite his recent suspended sentence for tax offenses.

However, the order did not hold up Deri’s expected appointment as a minister when the government is sworn in on Thursday. The incoming government has until Friday to explain its actions.

The ruling came in response to a petition filed by the Fortress of Democracy lobby group, which argued that despite the legal maneuvers clearing Deri’s path to become a minister, his appointment should be blocked because of his criminal conviction earlier this year.

Significantly, the legislation — which amended one of Israel’s quasi-constitutional Basic Laws — came into effect immediately rather than applying only to the next Knesset. The petitioners argued that changing the law and implementing it immediately for Deri’s sake constituted “a complete violation of the trust bestowed upon the constitutive authority [the Knesset] by the public.”

Supreme Court President Esther Hayut said the petition against the legislation would be heard at a session next Thursday presided over by an expanded bench of 11 judges.

The lobby group challenged Deri’s suitability to be a minister in light of his conviction and also argued against the change in the law being applied immediately, declaring it “a personalized law enacted in a hasty procedure.”

“The amendment to the law was accepted while abusing the constitutive authority, which harms the system of governance in Israel and is intended to harm ethical purity based on prohibited personal considerations,” it said.

Head of the Likud party Benjamin Netanyahu, right, with Shas chair Aryeh Deri at a conference in Jerusalem on September 12, 2022. (Yonatan Sindel/Flash90)

The Movement for Quality Government lobby group also filed its own petition against the law.

That petition argued that “there were serious flaws in the legislative process, including the violation of the principle of participation of members of the Knesset in the legislative process, the absence of an appropriate period of time to discuss the change and its consequences, and the lack of a proper and complete factual and legal infrastructure, in a manner that deviates from that by which Basic Laws were passed in the past.”

The court order requires the new government to explain why the newly passed law should be applied immediately and not from the next Knesset onward, and why Deri’s appointment as a minister is reasonable under the circumstances.

Early Tuesday the incoming coalition passed the law, its second, changing the quasi-constitutional Basic Law undergirding the government to smooth the path toward Deri’s ministerial appointments.

Although combined into a single bill to change Israel’s Basic Law: The Government, the amendment tackled two separate issues regarding incoming ministers Deri and Religious Zionism’s Bezalel Smotrich.

Smotrich and Deri had demanded the legislation in advance of swearing in the government of incoming prime minister Benjamin Netanyahu, now planned to take place on Thursday.

Deri in January received a suspended sentence for tax offenses. As part of a deal made with the court, the Shas leader quit the Knesset before sentencing to avoid a court decision on whether his offenses carried moral turpitude, a distinction that would have barred him from politics for seven years.

At the time of sentencing, Hebrew media reported that Deri and the court had the understanding that the moral turpitude issue would be revisited if he aspired to once again hold senior public office.

However, the legal change made on Tuesday obviated that requirement. The amendment changes the Basic Law to only explicitly demand a moral turpitude determination for custodial prison sentences.

Had the “custodial” addition not been made, Deri’s case would have been referred to the Central Elections Committee for a moral turpitude determination, in line with the original reading of the Basic Law and an opinion from the attorney general on the matter.

Instead, Deri is promised to simultaneously hold the interior and health ministries, before replacing Smotrich as finance minister later on.

Critics of the change, including the Knesset’s legal adviser, attacked the new law as “personal” and inappropriately legislated specifically for Deri’s benefit.

Shas leader Aryeh Deri leaves the Jerusalem Magistrate’s Court on February 1, 2022 after his conviction on tax offenses. (Yonatan Sindel/Flash90)

Smotrich benefited from other provisions of the new law that enable him to become a minister within the Defense Ministry with particular authority over settlement activity in the West Bank.

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