On January 18, 2023, Israel’s High Court of Justice, in an extended panel of 11 justices, ruled 10–1 that Prime Minister Benjamin Netanyahu’s appointment of Aryeh Deri, leader of the Shas party, to be minister of the interior and minister of health in his coalition government was unlawful and ordered Netanyahu to dismiss Deri from his ministerial positions.
Facts of the Case
On January 25, 2022, the Jerusalem Magistrate Court sentenced Deri, upon his conviction for tax offenses, to a 12-month suspended imprisonment term, with the sentence being dismissed after three years if he doesn’t commit more offenses. In addition, he was sentenced to a fine that can be replaced by one year in prison. The conviction was based on his admission under a plea bargain agreement that noted that because Deri had resigned from the Knesset (Israel’s parliament), the attorney general would not argue that the offenses for which he was convicted involved “moral turpitude.” A determination that the offenses had constituted “moral turpitude” would have resulted in Deri’s dismissal from the Knesset under section 42A of Basic Law: The Knesset and affected his eligibility for ministerial positions in accordance with article 6(c) of Basic Law: the Government, as in effect before its amendment on December 27, 2022. The amendment law made it no longer necessary to obtain a determination on the issue of moral turpitude in cases where the minister had been sentenced to suspended imprisonment, as in Deri’s case.
The court relied on Deri’s statement at his sentencing hearing that he wished “to continue … to invest [his time] in fulfilling public needs … in a different way, even if not from the Knesset.” When sentencing Deri, the court noted that any concern that Deri might in the future again “harm the public coffers” was assuaged by the “certainty” that he would have no further dealings with matters of “public economic interest since he will be distanced from the public sphere.” The day after his sentencing, however, Deri announced in a press conference that he would continue to “manage public affairs from anywhere – from the Knesset … and from wherever I feel the need to be.” He stated that that the plea bargain did not involve “moral turpitude” and that he intended to run in the next election.
Deri had previously served 22 months in prison from 2000 to 2002 for taking bribes while serving as interior minister. The court’s verdict in that case carried a designation of moral turpitude. In 2001, the attorney general ordered the closing of another case involving allegations that Deri had used his political power to support the appointment of a candidate for attorney general in exchange for securing a plea bargain (the Bar-On affair). The case was closed “since he [was] already serving time for bribe-taking, and a second case including five charges against Deri for the alleged illegal transfer of funds to associations affiliated with Shas … [was] still being heard by the Jerusalem Magistrate Court.” In 2003, Deri was sentenced to three months’ probation as well as to a fine or 15 days’ imprisonment in another case. He returned to politics in 2013 and served as interior minister from 2016 until 2021.
Parties’ Arguments
According to the petitioners, the amendment to Basic Law: The Government was “tailored to Deri’s needs” in order to circumvent the need to obtain a decision by the chair of the elections committee regarding the existence of “moral turpitude” in his tax conviction. They argued that the passage of the amendment constituted an abuse of the Knesset’s authority and should be nullified. They also claimed that the prime minister’s decision to appoint Deri to ministerial positions and his subsequent failure to remove him in accordance with the authority set forth in article 22(b) of Basic Law: The Government was unreasonable considering his criminal record and conduct. Additionally, the petitioners alleged that Deri’s statements before the Jerusalem Magistrate Court prevented him from serving as a minister in the government in accordance with the principle of estoppel.
Among other claims raised by the respondents, Shas argued that some 400,000 citizens had voted for their party, headed by Deri, in the last election, knowing his criminal record and expecting that he would serve as a senior minister in the government. The court, therefore, could not void their choice.
Decision of the Court
According to Court President Esther Hayut, with other justices concurring, it had been previously determined that as a rule, judicial intervention in legislation should serve as a last resort to be used only after exhausting other legal means. This is especially true in relation to judicial review of Basic Laws, which is reserved for extremely rare and exceptional cases. Therefore, and since the petitioners’ arguments on the administrative level regarding the appointment of Deri as minister and his nonremoval from office could be accepted on administrative grounds, the exceptional remedy of the nullification of the amendment under the doctrine of abuse of the constituent authority was not considered.
Most of the justices accepted the petitions on the basis of what they determined was the extreme lack of reasonability in the appointment of Deri considering his exceptional record of convictions, which included convictions for serious corruption offenses committed during his tenure in public office, and his recent conviction for tax offenses that were also committed while he was a member of the Knesset. This criminal record leads to the conclusion, Hayut opined, that “his tenure as a minister in the government constitutes a serious and severe blow to the image and status of the government authorities in Israel and to the basic principles of clean hands and integrity.”
In addition, Hayut held that the prime minister, when deciding on Deri’s appointment as a minister, should have considered Deri’s representation to the magistrate court after his tax conviction regarding his retirement from public life and his subsequent renunciation of this representation, as well as his misrepresentation of his intentions in order to avoid being charged with “moral turpitude” and declared ineligible for office.
Some of the justices accepted the petitions on the basis of the principle of estoppel. Accordingly, Deri’s resignation and statement in court that he no longer wanted to serve his supporters from the Knesset prevented him from accepting a ministerial appointment because doing so would contradict his representation to the court, thereby violating the duty of fairness that applied to him when facing the court, which serves as one of the branches of government.
Addressing the argument that the court could not void Deri’s election by 400,000 voters, Justice Alex Stein opined that the voters voted for Deri as their representative in the Knesset and could not appoint him as minister.
Moreover, the election of a person to the Knesset and his ascension to a high position in the government does not grant that person privileges, [or release] … from his legal obligations, or [immunity] … from the consequences of legal, criminal, or civil proceedings in which he was involved as a defendant – as if he were a king who was not responsible for his injustices (“The king can do no wrong”). In our legal regime, which has championed the principle of the rule of law, everyone is equal before the law. High-ranking people are not above the law, and the ordinary citizen is not below it. … We all bow our heads before the law, while the law does not bow its head before anyone.
According to the single minority opinion by Justice Yosef Elron, however, Deri’s appointment should be left intact, and the prime minister should request the chair of the elections committee to determine whether the tax offenses for which Deri was convicted constituted moral turpitude. In his opinion, as the issue of moral turpitude reflected on the reasonableness of the appointment, only after deciding on that matter would it be possible to decide on the legality of Deri’s appointment.
Ruth Levush, Law Library of Congress
January 31, 2023
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