Israel’s High Court Likely To ‘Choose Its Battles,’ Avoid Impeding Deri Appointment

Bill to amend the law so Deri can become a minister is likely to pass

The Israeli Knesset this week will deliberate on a bill that, if passed, would allow MK Aryeh Deri, the head of the ultra-Orthodox, Sephardic Shas party, to become a minister in the upcoming government, despite his recent conviction for tax offenses. Meanwhile, although the Supreme Court has the authority to invalidate a law that violates constitutional principles, right-wing parties are demanding that the new government first pass a bill to allow the Knesset to override the court.

The incoming government will have to deal with this issue before it escalates into a new culture war. Deri’s nomination to serve as finance minister aroused derision in view of his 1999 conviction for bribery and fraud and his three-year prison term, of which he served 22 months.

This made it impossible for Deri to be appointed a minister for seven years, under the current law for crimes carried the designation of “moral turpitude.”

Deri resumed his role as Shas chairman at the end of 2012, but in January 2022 he was convicted for the second time for tax offenses. In a plea deal, he was given a 12-month suspended sentence and a fine of NIS 180,000 (around $53,000). The bill to enable Deri’s appointment to the position of minister was submitted last month by a member of Shas, MK Moshe Arbel, who intends to change the law to bar only persons who have served active jail terms in the last seven years, instead of including persons on probation, as it does now.

Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, told The Media Line that the bill is very likely to pass since it needs only 61 out of the 120 MKs in favor. “They see it as the needed legislation in order to form the government, and they will form the government, so I don’t see any way the legislation will not pass,” he says.

Passing such a law can be very quick, and it can be done in a matter of one or two days, says Dr. Adam Shinar, a senior lecturer at the Harry Radzyner Law School at Reichman University, Herzliya. “If there’s a political will, it’ll be very easy to pass such a bill,” he told The Media Line.

Fuchs adds that there will most likely be petitions by different actors to the High Court of Justice for it to annul the amendment. However, he notes, this case is an amendment to a basic law, which makes it part of the country’s de facto constitution.

“This is not just a law that you can say is unconstitutional because it’s violating a basic law. This is an amendment to the basic law,” he says, adding that it is very rare for the Supreme Court to interfere in the legislation of a basic law.

Nevertheless, he warns of the danger of legislating an amendment for one individual person – to enable Deri specifically to become a minister – because of its implications for the rule of law. “If someone can just alter the rules when they are not convenient, then theoretically the Supreme Court can say that this is a misuse of constituent power,” he adds.

Shinar suggests another way the court could resolve the issue, instead of striking down the amendment, is to employ the reasonableness doctrine, to invalidate specifically Deri’s appointment as a minister. This doctrine allows the Supreme Court to invalidate a decision if it is considered extremely unreasonable.

However, he believes the court is not likely to do so, for fear of a possible backlash. “I think maybe the court will not intervene because this is a very contentious political topic and it’s very hard for me to see the court right now – when it’s fighting for its legitimacy – strike down something like that,” he says, adding that such move would probably trigger more attacks on the court.

“I think that the Supreme Court might stay away and choose its battles,” Shinar continues. Even if Deri is ultimately disqualified, the government is still likely to be formed with the participation of Shas, says Shinar. “Other members of Shas will be ministers, and Deri will continue running the scene and managing the party even if he’s not a minister.”

He believes that, even if Deri is not allowed to be a minister, the Shas party “will stay in the picture, it will get what it wants, it will get the budget, and Deri will still call the shots because he is still the leader of the party.”