Can Deri be 'kosher' minister without wrecking Israel's justice system? - analysis

The incoming coalition is considering an amendment to the Basic Law stating that a suspended sentence cannot disqualify one from serving as minister.

SHAS LEADER MK Arye Deri, August 2, 2021 (photo credit: MARC ISRAEL SELLEM)
SHAS LEADER MK Arye Deri, August 2, 2021
(photo credit: MARC ISRAEL SELLEM)

Since it became clear that Benjamin Netanyahu would finally get to form a “pure” right-wing government with no centrists, speculation has been rampant about a revolution against the legal establishment.

However, one scenario of that revolution that has gotten increasing attention might be a way to achieve some key goals of Netanyahu’s new government without upsetting the entire applecart and without generating a constitutional crisis between the disparate branches of government.

Currently, one option the coalition is considering is an amendment to the Basic Law regarding the standard for serving as a minister to clarify that a suspended sentence, as opposed to serving actual jail time, does not disqualify someone from serving as a minister.

This is no theoretical issue. It is directly relevant to Shas Party leader Aryeh Deri, currently expected to be the next interior minister and possibly also hold an additional portfolio.

Deri was given a suspended sentence earlier this year for minor tax crimes. Under existing law, the High Court of Justice would likely nix him from being eligible as a minister, virtually all top legal officials have told The Jerusalem Post.

 Benjamin Netanyahu looks at Shas leader MK Aryeh Deri as they stand with other members of the new Israeli parliament after their swearing-in ceremony in Jerusalem November 15, 2022.  (credit: RONEN ZVULUN/REUTERS) Benjamin Netanyahu looks at Shas leader MK Aryeh Deri as they stand with other members of the new Israeli parliament after their swearing-in ceremony in Jerusalem November 15, 2022. (credit: RONEN ZVULUN/REUTERS)

But part of the High Court position would be based on a Basic Law that has its own loopholes.

According to the relevant Basic Law, anyone receiving a “prison sentence” cannot serve as a minister.

What constitutes as a prison sentence?

Yet, the law does not specify whether a “prison sentence” means actually spending time behind bars or a suspended sentence, which generally only leads to serving prison time if the offender repeats his offense.

The amendment would make it clear that someone is only prevented from serving as a minister if they serve actual jail time (Deri served jail time around 20 years ago for a different offense, which is mostly not viewed as legally relevant).

How could this solve Netanyahu’s problems without needing a wider revolution?

If Netanyahu is willing to let his own public corruption trial play out for now, since it could easily take another 18 months and since he may win, then he does not “need” to take any actions against the legal establishment on his own behalf.

Further, if amending the law in question allows Deri to serve as a minister by making it hard or impossible for the High Court to interfere (the High Court has never declared a Basic Law or amendment to a Basic Law unconstitutional), Netanyahu has his new government intact.

For the legal establishment, it would mean swallowing a sour pill of the government changing a Basic Law retroactively and personally to legitimize the ministerial power of a specific individual convicted of corruption. But it could be much less sour than the alternative of a broader onslaught against the legal establishment.

True, the Religious Zionist Party and Netanyahu’s haredi partners want to dismantle much of the High Court’s power in other ideological areas. But if Netanyahu himself overrules them or pushes those issues off, while offering them all cabinet ministries, a constitutional crisis might be averted.

But surprisingly, from surveying top legal officials, who all were only willing to speak on condition of anonymity due to the sensitivity of the issue, it seems that no one really buys this view.

Rather, the majority of top legal officials told the Post that accepting such a sour pill without a fight – in the Middle East where we all reside – would be viewed as softness and a readiness to surrender to further rougher moves.

In this telling, accepting the Deri amendment would not just be a slippery slope, it would encourage those who want to tear down the legal establishment to go for more.

Moreover, they said it was unlikely that the RZP and the haredi parties would accept such a limited victory over the legal establishment after more than a decade dreaming of a slam-dunk victory.

Their suspicion on this count received support on Tuesday from RZP MK Simcha Rothman, who criticized the idea of a stand-alone Deri amendment in place of a broader revolution against the judiciary.

Such a narrow change would be highly inadequate and a waste of the country’s right-wing golden opportunity to remake the legal establishment in their image, he said.

So a majority of top legal officials feel that the only hope for salvaging the legal establishment – if there is any – is holding the line and making it clear to the public that changes such as the Deri amendment will end the rule of law as we know it.

Only such a clear and uncompromising stance might lead Netanyahu to think twice.

The other camp of top legal officials, a minority, also do not seem to buy the idea of swallowing the sour pill of the Deri amendment as a middle-of-the-road solution.

Some of them straight out say that there is nothing wrong with the Deri amendment at all, besides maybe the background to the change.

In their telling, however, the law was poorly worded, and a clarifying amendment would make sense in any situation.

The middle-of-the-road solution may still be what happens if it is what Netanyahu wants badly enough.

But in the meantime, it seems that he will not get much help from other parties on either side of the debate.