BICOM

What happened: Yesterday an 11-justice High Court of Justice panel began a hearing to discuss the legality of Shas leader Aryeh Deri’s appointment as a government minister.

• Deri is today serving as acting prime minister while Netanyahu underwent a medical procedure and was briefly incapacitated.
• The hearing was prompted by three petitions to the court:
  • The first argued that the Deri Law is a personalised law, abusing the Knesset’s authority to legislate Basic Laws.
  • The second that Deri’s appointment as minister is ‘unreasonable’ because of his recent conviction and criminal record.
  • The third petition stated that Deri’s appointment contradicts terms of his plea bargain, whereby he would retire from public life in order to avoid the categorisation of moral turpitude.

Background: One of the laws passed prior to the governments swearing in, made the distinction between a suspended and custodial sentence allowing Deri to serve as interior and health minister.

• Last year In a plea bargain last year, Deri confessed to tax offenses and was given a suspended sentenced on condition that he resign from the Knesset, which he did.
• In the leadup to the hearing Attorney General Gali Baharav-Miara clarified that she had no objection with the Knesset’s authority to change the basic law, but nevertheless thought it “extremely unreasonable” for Deri to serve as a minister. As such she would not defend the government in court but allowed Deri and Prime Minister Netanyahu to appoint their own legal counsel.
• Not only was Deri found guilty of tax offenses last year, twenty years ago he served a prison sentence for bribery.  After being released, he spent the requisite seven years away from public office.

In court yesterday: Justice Stein, took issue saying, “You can’t say ‘I resign’ for the benefit of a convenient plea bargain and after a very short time say ‘I want to become minister.'”

• Deri’s lawyer said this was “a rare case of misunderstanding.”
• His lawyer argued that his appointment expressed the will of over 2 million Israeli citizens, including 400,000 Shas voters.
• President of the Supreme Court Esther Hayut retorted that they have the right to choose representatives to the Knesset, but not ministers.
• Netanyahu has argued that he values Deri’s “great wisdom and experience” and his appointment was vital for foundation of this government.

Justice Minister presents his plans for legal reform: On Wednesday evening (the night before Deri’s hearing) the new Minister of Justice Yariv Levin (Likud) held a press conference.

• He outlined four significant changes he is looking to bring in.
  • An override law that would allow the Knesset to reinstate legislation annulled by the Supreme Court, by a simple majority of 61 votes.
  • To reform the committee that selects judges, giving politician more control. Levin explained, “There will no longer be a situation in which judges elect themselves in closed rooms… Instead, there will be equal representation for all three branches of government on the Judges Selection Committee. The justice minister will appoint two public representatives to the committee instead of the sectarian representatives of the Israel Bar Association, and full transparency by means of public hearings in the Knesset Constitution, Law and Justice Committee for Supreme Court candidates.”
  • Abolishing ‘reasonability’ as grounds for the court to cancel government decisions. Levin said, “There is no such thing as a grounds of reasonability. No more will the government be subordinate to an unelected echelon.”
  • Altering the role of ministerial legal advisors, allowing ministers to appoint their own advisers (like in the UK).
• Levin argued, “Confidence in the justice system has fallen to a dangerous nadir. We went to the polls, but time and time again people who we never elected made choices for us. That is not democracy. The governance reform will strengthen democracy and will restore the balance between the three branches of government. We will discuss at length and in great depth, and the opinions of all MKs from every faction will be heard, as will those held by members of the justice system.”

Responses: Leader of the Opposition Yair Lapid said, “Like a gang of criminals, a day before the High Court of Justice hearing on the Deri law, the government placed a loaded pistol on the table. What Yariv Levin presented today isn’t judicial reform; it’s a threatening letter. They are threatening to destroy the State of Israel’s entire constitutional structure. I am announcing here and now: on the day we return to power all of these changes will be abolished. The reckless reform will be abolished; the extortionist override clause will be abolished; judges won’t be elected by corrupt politicians who want to have the cases against them closed.”

• The former Justice Minister Gideon Saar said, “Minister Levin cited Menachem Begin, the legendary and first leader of the Likud, this evening at the beginning of his remarks. But his statements were nothing short of killing Begin’s democratic and regime doctrine. Without doubt, Menachem Begin would have rejected every one of the sections of this plan to change the regime in Israel. His real disciples bear the duty of fighting against that, and that is what I will do.”
• Saar’s party leader Benny Gantz suggested establishing a bipartisan committee to debate and reach a consensus on reforming the judiciary.  For example regarding the override law, a more restrained version would require a larger Knesset majority in order to overrule Supreme Court decisions.

Context: The timing of Levin’s announcement angered Deri, who believes that under the threat of intimidation the judges could actually toughen their stance against him.

• Israel is a uniquely fragile democracy, it does not have a constitution, a second chamber or a presidential veto.
• The separation of powers is a founding principle but there is only a limited distinction between the legislative and executive branches.
• In the last 30 years there has been numerous examples of an activist Supreme Court challenging government decisions.  The court uses the precedent of the Basic Laws to overrule government decisions.
• Levin and his supporters have long argued that overruling government decisions works against the values of democracy, when the Knesset is the only elected body.
• Others have argued that these Basic Laws protect Israel from international criticism as they recognise the standing of an independent Supreme Court.
• Defenders of the reforms point to the example of the US legal system and other democracies where all judges are selected by elected officials.

Looking ahead: Following Levin’s announcement he will be completing preparation to bring the bills to the Knesset in next month or two.

• Netanyahu has not commented publicly on Levin’s plan it is thought that he does not necessarily agree with it all and elements could be softened.  Speaking recently on his podcast Ron Dermer, perhaps Netanyahu’s closest ally and newly minted Minister of Strategic Affairs though the reforms should be made “with a scalpel and not sledgehammer.”
• The verdict in Deri’s hearing  could still take some weeks, but will have profound repercussions for the government and its relationship with the court.