ISRAEL AT WAR - DAY 145

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Under threat, High Court hears petitions against Deri’s ministerial appointment

As it faces proposals to curtail its powers, court to weigh in on Shas leader serving in office despite tax fraud conviction; AG has warned of ‘severe damage to public trust’

  • Supreme Court Chief of Justice Ester Hayut (C) attends a hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses at the Supreme Court in Jerusalem, on January 05, 2023 (Yonatan Sindel/Flash90)
    Supreme Court Chief of Justice Ester Hayut (C) attends a hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses at the Supreme Court in Jerusalem, on January 05, 2023 (Yonatan Sindel/Flash90)
  • Protesters demonstrating outside the Supreme Court demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses at the Supreme Court in Jerusalem, on January 05, 2023 . (Yonatan Sindel/Flash90)
    Protesters demonstrating outside the Supreme Court demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses at the Supreme Court in Jerusalem, on January 05, 2023 . (Yonatan Sindel/Flash90)
  • Shas leader Aryeh Deri attends a special session of the Knesset to approve and swear in the new government, at the Knesset in Jerusalem, December 29, 2022. (Amir Cohen/Pool Photo via AP)
    Shas leader Aryeh Deri attends a special session of the Knesset to approve and swear in the new government, at the Knesset in Jerusalem, December 29, 2022. (Amir Cohen/Pool Photo via AP)

The High Court of Justice convened Thursday morning for a hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses.

The session comes a day after the new government unveiled a drastic plan to shackle the court and overhaul the judicial system.

It can be watched live here.

The new government, in one of its first legislative actions, approved a bill amending one of Israel’s Basic Laws to allow Deri to be appointed as a minister — by stipulating that only a custodial sentence precludes such an appointment, rather than a suspended one such as the one he was given. Shas had demanded that bill’s approval as part of its conditions for joining the coalition.

The petitions against Deri’s appointment, submitted 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, added to his conviction in 1999 on bribery charges, makes his appointment “unreasonable.”

In addition, the petitions argue that the bill allowing his appointment was illegitimate, as the legislation was passed due to political considerations of an individual politician and the new government.

The move also drew fire from Attorney General Bali Baharav-Miara, who informed the High Court on Wednesday that she strongly opposes Deri’s appointment as a minister, saying his past criminal conviction should bar him from office. Deri has now been appointed interior and health minister.

As the justices met, several dozen demonstrators blocked Rabin Boulevard, a main road outside the court, waving Israeli flags and signs protesting Deri’s appointment and chanting “A government of crime.”

Others held a large black sign with the biblical commandment “Thou shalt not steal.”

The hearing on the petitions takes place under the shadow of the declared coalition plans to hobble the court’s power.

Justice Minister Yariv 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 rulings, hand it 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.

Justice Minister Yariv Levin holds a press conference at the Knesset, in Jerusalem, January 4, 2023. (Olivier Fitoussi/Flash90)

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 the Basic Laws.

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.

A High Court override clause will also be legislated, Levin said, to allow the Knesset to re-legislate a law struck down by the court, with the barest majority of 61 MKs. Netanyahu’s bloc holds a 64-seat majority in the 120-seat Knesset.

Baharav-Miara, in her Wednesday filing to the High Court in response to the petitions against Deri, argued that his appointment after repeated criminal convictions “exceeds in the extreme the boundaries of reasonableness,” and that the court should therefore annul the prime minister’s decision to install him as a cabinet minister.

Attorney General Gali Baharav-Miara at her inauguration ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90)

“The appointment at this time of Minister Deri to the distinguished position of cabinet minister, less than a year after he was convicted and was given a suspended jail sentence, will cause severe damage to public trust in the ethical conduct of elected officials,” Baharav-Miara said.

The attorney general was of the opinion, however, that the court should not intervene against the legislation passed to enable Deri to take up these roles. She argued that since the law amended by the coalition for this purpose was a Basic Law, the court should demonstrate greater caution in exercising judicial review over such legislation.

Baharav-Miara wrote in her response to the High Court that the issues at hand touched on critical aspects of the country’s system of government, including the ability of the Knesset to legislate laws of a constitutional nature, and the status of the rule of law.

She noted that Basic Law: The Government, which was amended to enable Deri’s appointment, was originally legislated without any reference to, or intention to assist, any particular individual, but that this was manifestly not the case in the recently passed amendment.

The government’s amendment passed last month changed the Basic Law in a way that means that Deri can be appointed to a cabinet portfolio despite having received a 12-month suspended jail sentence in February 2022 that is yet to expire.

Shas party members arrive for a court hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister due to his recent conviction on tax offenses at the Supreme Court in Jerusalem, on January 05, 2023 . (Yonatan Sindel/Flash90)

Regarding the “reasonableness” of Deri’s appointment given his criminal convictions, Baharav-Miara said the prime minister has wide discretion when appointing ministers but that appointing Deri exceeded those boundaries.

She noted that in 2015 and 2016, the High Court opined that Deri’s appointment as a minister was at the edges of the boundaries of reasonableness, bearing in mind his 1999 conviction for bribery.

The attorney general argued that since that time, with Deri convicted once again, this time on criminal charges of tax fraud, his appointment should be disqualified.

His appointment “exceeds in the extreme the boundaries of reasonableness and we believe it should not be accepted,” wrote the attorney general.

Levin said in his proposal that part of the “first stage” of his legal-system overhaul is to ban the High Court from using a “reasonableness” standard in judicial review, which has been used by the court to determine whether or not a government or ministerial decision or regulation is lawful.

Interior and Health Minister Aryeh Deri at a ceremony of the incoming minister of Social Affairs Yaacov Margi (not seen), at the Social Affairs Ministry in Jerusalem on January 1, 2023. (Yonatan Sindel/FLASH90)

On Tuesday, in a rare step, Baharav-Miara said she will not defend Deri’s appointment in High Court proceedings. The decision amounted to a strong reprimand by the attorney general to the government, and also demonstrated her strong opposition to Deri’s appointment.

Responding to Baharav-Miara’s legal opinion, Deri on Wednesday said: “I trust the High Court in Jerusalem to convene tomorrow in an expanded panel of 11 justices and hear the voices of over 2 million Israeli citizens and 400,000 Shas constituents who want to see me as a minister in this government.”

On Tuesday, Netanyahu’s legal team filed a response to the High Court laying out why Deri should and must hold a ministerial job in the new government.

The last four years of political instability, during which time five elections were held, had led to “unprecedented circumstances” that required the prime minister to restore political order, the prime minister’s lawyers argued.

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

Opposition Leader Yair Lapid speaks during a Yesh Atid faction meeting at the Knesset in Jerusalem, January 2, 2023. (Yonatan Sindel/Flash90)

The opposition has blasted the government for the proposed changes to the justice system, calling them a threat to the country’s government structure, particularly ahead of the hearing on Deri’s appointment.

“What Yariv Levin presented today is not a legal reform, it is a threat. They threaten to destroy the entire constitutional structure of the State of Israel,” said Opposition Leader Yair Lapid. “I’m announcing now — on the day we return to power, all these changes will be canceled.”

“Like a gang of criminals, the day before the High Court hearing on the Deri Law, the government has put a loaded gun on the table,” Lapid charged.

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