On this day, January 18, 2023, the Supreme Court of Israel has issued one of its most consequential decisions in the history of the State. Released at 4 p.m. Israel time (9:00 a.m. EST), the Court decided by a vote of 10-1 that Rabbi Aryeh Deri, head of the Shas party, should be removed from his position as a Minister in the current government. While my intro sounds excessively dramatic, I may have even understated the situation. Israel is on the edge of a constitutional-judicial precipice and it is very difficult to predict what we may see next.
A Bit of Background
Before I get to the actual decision, I just want to cover a few points, as quickly as I can, some of which I may have addressed in my previous blog. But they are important context.
1. As you know, Israel has held several consecutive elections, which have mostly resulted in "stalemates" without a clear victory by the right or the centre-left.
2. In the most recent election, the Israeli right and far right - managed to win a total of 64 seats, including 11 seats for the ultra-orthodox Sephardi party, led by Rabbi Aryeh Machluf Deri.
3. Deri was convicted in 1999 of several offences including bribery, corruption, and breach of trust. These are referred to as his "personal offences." He was also convicted of "public offences" (essentially diverting public funds illegally to a charitable organization that he supported). Deri was sentenced to 4 years in prison and served a sizeable chunk of that time.
4. After being statutorily barred from office for 7 years under Israeli law, Deri returned to public life - and was eventually crowned, once again, as the head of the Shas party. Under a previous Netanyahu government, Deri again became Minister of the Interior almost 14 years after his original conviction (the position he had held in the 1990s when he committed the earlier offences).
5. While Minister of Interior this time around, Deri was again investigated and charged with a whole series of offences including bribery, corruption, breach of trust and other offences.
6. In 2021, Deri agreed to a plea bargain where he would plead guilty to tax offences and the other charges would be dropped. He appeared in Court and told the Court that he would be leaving public life. In exchange, the Court issued a suspended 12-month sentence and ordered Deri to pay a significant fine.
7. In Israel, convicted offenders are barred from serving from the Knesset if the conviction carries the designation of "moral turpitude." The Court did not officially designate Deri's latest offence one way or the other. According to Israeli law, he should have then gone to the National Elections Committee for a determination as to whether this offence involved Moral Turpitude. If it was categorized in that way, Deri would have been barred from serving as a Minister for 7 more years.
8. Despite Deri's conviction, he ran in the most recent election as leader of the Shas party and his party won 11 seats (in a Knesset of 120). He and his party were critical to Netanyahu's ability to form a majority coalition. As part of the coalition negotiations and eventual agreement Netanyahu agreed to give Deri two Ministerial positions and also make him deputy Prime Minister.
9. Knowing that Deri faced a serious risk of being ruled unfit for office by the courts, Netanyahu's new coalition government introduced legislation, even before they were sworn in as a government, to change Israel's "Basic Law" and state that convicted offenders can be Ministers as long as they do not serve jail time.
10. The appointment of Deri to Ministerial positions was challenged in the Supreme Court of Israel (you can bring this type of question directly to the Supreme Court). The new legislation was also challenged. There were a whole range of applicants - including members of the opposition.
11. The night before the hearing was held, the new Minister of Justice, Yariv Levin, announced a four point plan to reduce the power of the Supreme Court dramatically (which I discussed in my earlier blog). Commentators viewed this as "pointing a loaded gun at the Supreme Court on the eve of the hearing."
12. The Supreme Court hearing was broadcast live on TV and went on for about 6 hours. The decision was reserved.
13. Last week, the President of the Supreme Court, Esther Chayut, took the unprecedented step of giving a prime time, detailed speech opposing the proposed reforms by the current government. She warned that this was a major attack on the judiciary and would weaken Israeli democracy and judicial independence significantly. While her speech suggested hinted at what the Supreme Court would ultimately decide in its pending decision, she did not directly address the case that she had just heard.
The Decision Itself
This is not an academic blog, even though I try, at times to edge into academic discussions. It is also not a legal blog - even though, as you know, I have a Canadian law degree and some familiarity with Israeli law. As a result, I cannot promise (or deliver) a complete legal analysis of the decision. But I can make a few relevant comments. I apologize again for the length of this blog but I realized that it would take longer to cover this than originally expected.
First of all, the decision is about 124 pages long and was released in Hebrew only initially. I slogged my way through a chunk of it in Hebrew and then gave google translate a try - with a fair degree of success. Although my Hebrew is quite good, I have to say that it was much easier to go through the decision in English.
As I have mentioned, the main take-away is that the Court disqualified Aryeh Deri as being fit to serve as a Minister.
There were 11 judges hearing the case (out of a total of 15 sitting judges). As an aside, I wonder why they didn't simply have all 15 hear the case - but I'm not going to address that.
The Court heard three challenges to Deri's appointment that it was asked to adjudicate. I have edited or paraphrased the essence of these three challenges:
1. The first challenge was the new legal amendment to the Basic Law enacted by the incoming government. As I have discussed previously, up until December 2022, the law in Israel was that a convicted criminal could not not serve as a Minister in the government if the conviction carried as designation of "moral turpitude." Generally, criminal sentences that involve prison time have been considered to be in that category. Moreover, there was no distinction between suspended and non-suspended sentences.
Normally, if a person is convicted of a crime, they can appeal to the National Elections Committee for a designation of whether or not the offence carries this designation. If so, they could be barred from serving as a Minister in the Knesset for seven years. As outlined above, Deri received a suspended sentence (one year plus fines) for Tax offences and all of the other charges against him were dropped. He stated in court that he was leaving public office and it was on this basis that the plea bargain was accepted. Shortly afterwards, he announced that he was back in business and re-entering public life. He did not go to the elections committee to determine if his offence would be designated as a "moral turpitude" offence, since he did not want to be barred for seven years (which was a likely outcome). Instead he held a press conference to announce his self-proclaimed victory over a "rigged" justice system.
The law that the new government promulgated (as described above) to allow a convicted criminal to serve as a Minister as long as the person did not serve jail time was challenged in the Court by a variety of groups. From my review of the opinions of the 11 judges, it appears that only one or two of the judges were prepared to hold that the new law was void (ultra vires). However, most of the judges held that they did not need to decide the issue.
I think they felt that they would be overstepping if they were to overturn this law - and they did not need to do so anyways.
2. The second challenge was based on an Israeli doctrine of, essentially, "patent (or extreme) unreasonableness." Here the argument was, that in exercising his jurisdiction to appoint ministers, Prime Minister Netanyahu had to take into account appropriate legal considerations and failed to do so in the extreme. The Court reviewed Deri's record of multiple convictions - noting that he has been convicted of three different sets of offences, in each case while serving in the government as a Minister. It also noted that he mispresented himself to the Court to secure his plea bargain deal, that he repeatedly showed (by words and actions) disdain for the legal system and that this was an extreme case in which the failure to consider these issues violated principles of Israeli law. Of the 11 judges writing opinions (and each judge wrote at least a few paragraphs - if not multiple pages), I counted 7 judges, including Chief Justice Chayut, who were prepared to disqualify Deri on this basis. Some commentators have suggested that only five judges in total upheld this ground - so perhaps I will have to go back and read some of these opinions again. Justice Chayut, the president of the Supreme Court, held that since she was making her ruling on this ground, she did not need to decide the other two grounds. Several of the justices agreed with her.
3. The third challenge was a bit more difficult to understand. Essentially, the argument was that Deri misled the Court when he entered into his plea bargain arrangement. In a nutshell, the basis for the plea bargain was a mispresentation, wrongful manipulation of the Court and an exhibited disdain for the Israeli legal system, making him unfit for service as a Minister. At least three of the judges ruled against Deri on this basis and some others were prepared to agree to this ground along with the ground of reasonableness. This is an interesting ruling because, apparently, this type of decision would not be affected by a governmental decision to change the law of "patent unreasonableness." In other words, one of the changes proposed by Justice Minister Levin is to strip the Israeli Supreme Court of the power to invoke "patent unreasonableness" as a ground for overturning governmental action. This finding of "misrepresentation" is not reliant on a need to invoke "patent unreasonableness." In fact, some of the judges using this ground to overturn Deri's appointment expressly stated that they would not agree to call the decision to appoint Deri patently unreasonable, even though they would overrule his appointment on other legal grounds.
Ultimately, no matter how you slice it, 10 of the 11 judges held that Deri should be ruled unfit for office and removed from his position as Minister. It is unclear that the Knesset can easily overturn this decision, though it sounds like the current government will certainly try.
One judge, Justice Elron, dissented. According to Justice Elron, the decision is premature and Deri should be forced to go the National Elections Committee and get a determination as to whether his offences are such that they would attract the "Moral Turpitude" designation. Despite the spin from commentators on the Israeli right - Justice Elron did not rule that Deri was fit for office or dismiss the appeal outright. This was primarily a procedural decision - even though Justice Elron did note that Prime Minister Netanyahu should be given much more latitude than the other judges of the Court are prepared to grant.
Commentators have also noted that Justice Elron was the one non-Ashkenazi judge in this group of 11 - and that Deri is of Moroccan origin. The Shas party has attempted to portray this as a racist ruling by 10 non-Sephardi judges - even though five of them are considered "conservative" or "very conservative" judges. Many are trying to use this lone judge's dissent as a call to attack the court as racist, elite, prejudiced and unrepresentative of Israeli society. Although it would certainly make sense to have greater Sephardi representation on the Israeli Supreme Court, I really don't buy the argument that these judges were all ruling against a serial criminal because of his ethnic origin.
We are hearing about all kinds of possible steps that the current government might now take in response.
Here are a few possibilities.
1. The government may simply press ahead with its dramatic attempt to weaken the Supreme Court. Levin's multi-part proposal is only the first step in his unrevealed plan. (As he has stated). He has indicated that the government will start by passing a law allowing it to overturn any decision of the Supreme Court by a mere majority in the Knesset. The government also plans to take away the Supreme Court's ability to use "patent unreasonableness" as a grounds for overturning governmental decisions. The government intends to change the way justices are appointed so that it can appoint more judges favourable to the political party that is in power. After pressing ahead with these changes, the government may then overrule the Supreme Court's Deri decision and reinstate him. This could then be appealed to the Supreme Court. Good luck predicting what will then happen. It would be a major jurisdictional war between the legislative and judicial branches of the state.
In the meantime, this type of legislative attack on the courts will almost certainly cause a significant increase in the number of Israelis taking to the streets to demonstrate against the government. Estimates from last Saturday night's rallies were in the range of 80,000. If the current government proceeds with plans to attack the Supreme Court, we may see demonstrations of hundreds of thousands of Israelis - and we may also soon see road blockages, general strikes and other types of civil disobedience.
2. Netanyahu might find some other creative compromise - such has appointing Deri's son (don't laugh - that is being proposed) to these Ministerial positions while keeping Deri around in a position that he is still legally able to hold.
3. Netanyahu could re-open the coalition talks and give the Shas party a range of new concessions to appease the party and Deri, though it is unclear what would be acceptable to Deri short of being cleared to serve.
I think it is very difficult, if not impossible, to predict, as of right now, which path Netanyahu will choose and what he will come up with. His coalition partners seem determined to emasculate the Supreme Court. Historically, Netanyahu has been supportive of a strong independent judiciary. But since a weakened judiciary could also benefit Netanyahu (as he struggles to get out of his own criminal proceedings), Netanyahu may well agree to use the "nuclear option" and declare all out war on the Supreme Court by enacting all of Levin's proposed changes.
Unless there is a mediated solution of some sort, this "war" between the current government and the Supreme Court could go on for quite some time and may not be readily resolvable. If the Supreme Court rejects some of the government's proposed amendments, as violating Israel's "Basic Law," we would be at an impasse.
We are in for some very interesting times indeed. In my view, much of this situation stems from the fact that Netanyahu is currently entangled in his own criminal proceedings and willing to entertain any type of coalition arrangement if it might help him extricate himself from the possibility of conviction.
Stay tuned - as there will undoubtedly be some wild developments in the coming days and weeks, if not months - or even years. As I said at the outset, the impact of this decision on the Israeli judicial and legislative system is enormous, even immeasurable. I hope that all of this will be resolved reasonably at some point, though I am very concerned about whether that is possible.