After a Sunday hearing on three petitions, the High Court of Justice leaned toward delaying until next election the application of the Tiberias law – legislation that would allow the appointed temporary Tiberias mayor to run in the October election despite countrywide restrictions on caretaker local authorities immediately running.
Justice Noam Sohlberg recommended appointed caretaker mayor Boaz Yosef withdraw his bid for office after the court heard three competing ideas on how to address the controversial July 4 Tiberias law, which petitioners argued was a personal law that “changed the rules of the game.”
While the defense called for the rejection of the petitions, many of the petitioners and parties called for the striking of the law as unconstitutional, while more measured government legal advisers called for the law to be interpreted and delayed until the next election.
Three petitions were heard before the court in Jerusalem, one filed by the Anti-Corruption Movement (TLM), the Israeli Movement, and Tiberias mayoral candidate Shani Illuz. Two others were filed by the Movement for Quality Government in Israel, and Tiberias politician Aviv Itzhak.
Knesset Legal Adviser Yitzhak Beret said that the state favored delaying the application of the law for six months, to allow lawmakers to fix some of its problems. The Attorney-General’s Office, according to representative Sharon Rotshenker, sees the law as faulty and believes that it should be scrutinized constitutionally and can’t be accepted in its current form. That said, the Attorney-General’s Office prefers a delay and interpretation by the court to striking down the legislation.
The Tiberias law amended a 2008 law, essentially reversing the caretaker cool-down period. The court challenged Rotshenker about why the Attorney-General’s Office was challenging the situation now, when it hadn’t done so prior to 2008. Rotshenker argued that previously there was no active legal measure that created the situation, before it was a regulatory issue.
Downplaying the personal nature of the bill
Beret said that the combination of personal benefit, changing the rules of the game, and damage to rights made the law untenable, requiring the court to take action. Rotshenker said the law harmed public interest and belief in the voting system. A representative of the Federation of Local Authorities in Israel, Noah Ben-Arieh called for the striking down of the bill, arguing that the constitutional right to voters was being damaged by the law. High Court President Esther Hayut said that there was a difference between harming rights and the public interest.
“If you want a cancellation of the law, you need to show how it infringes on constitutional rights,” said Hayut.
Beret argued why the bill should not be struck down. While petitioners were concerned that Yosef would have the advantages of incumbency, Beret said that equality between candidates is never a reality, and that each candidate has different virtues and flaws that give them advantages and disadvantages. Beret said that the purpose of appointed caretakers was to take on the difficult job of a failed local government, tasked to improve the situation. An advantage is only gained if the caretaker mayor succeeded in his task. It is the job of the voters to weigh their advantages and failures, he argued.
Attorney Ilan Bombach, representing the Tiberias administration, said Yosef didn’t use city funds and resources for his campaign, so he had no advantage. He praised Yosef for his work, a job that no one else wanted to do. He noted that Yosef is a man who had been in multiple local government positions.
“There are 50,000 people who can decide, let them vote,” said Bombach.
Rotshenker said that the rights of other candidates were being harmed by the law. Changing the rules of the game for Yosef represented a fundamental change in the election, not a technical matter, Yosef was a surprise entry into the race.
The Court reminded that the issue with Yosef’s advantage was that it was an unearned advantage. Justice Yizhak Amit explained that the issue that needed to be addressed was the fact that Yosef had been sent in with the mandate of a professional, but had “switched hats” to that of a politician. Granting him the ability to do this is part of what made the bill personal, said the court.
Beret downplayed the personal nature of the bill to prevent it from being canceled, saying that there is a difference between a law that applies personally and a personally motivated law. He noted that the law would apply generally in the future to many cities. Bombach noted that the law applies to other municipalities, but the court pointed out that because other municipalities are either beyond the green line or not in election season, Tiberias is the only location to which this law currently applies.
Beret explained that the election process starts 150 days before election day. Bombach said that the bill had been submitted weeks prior to this 150 day process, but Hayut expressed skepticism that the timing proved the law wasn’t personal.
Bombach also said that the media had lied about Yosef’s connection to Shas party leader Aryeh Deri, whose party members had advanced the bill.
“It’s a lie, he’s not an associate of Aryeh Deri,” said Bombach. He is not his friend, nor in his party, he said.Bombach also argued that even if the law was personal, the court couldn’t cancel a law for this reason, although Hayut seemed wholly unconvinced.
Another concern is that Interior Ministry-appointed caretaker mayors, if they become immediately electable, could interfere with the autonomy of local government.
“Political appointments are something that we need to be wary of regardless of the amendment,” said Beret.