Why Israel's right-wing judges voted against Arye Deri - comment

High Court judges who previously found reasons to rule in favor Benjamin Netanyahu based on ideology, tossed ideology out the window. Why?

 Health and Interior Minister Arye Deri at the handover ceremony for the Interior Ministry, January 1, 2023. (photo credit: YONATAN SINDEL/FLASH90)
Health and Interior Minister Arye Deri at the handover ceremony for the Interior Ministry, January 1, 2023.
(photo credit: YONATAN SINDEL/FLASH90)

It was not surprising that the High Court of Justice’s activist wing nixed Shas leader Arye Deri from remaining a minister within the government following his two convictions.

What was surprising was that moderate conservatives Yitzhak Amit and Yael Wilner and hardcore conservatives Alex Stein and David Mintz ruled against Deri and that even conservative Yosef Elron left the door open to the Election Commission to nix Deri.

In particular, Stein’s words to Deri were devastating, “his words were empty words.” Put differently, Stein, who has repeatedly found reasons to rule in favor of the policies of the government of Benjamin Netanyahu based on ideology, tossed ideology out the window.

He told Deri: you are a liar, end of the story.

Stein, Mintz, Wilner and Amit were livid that Deri promised in detail to stay out of a public service role, committing to only being involved indirectly from the Shas party.

 Health Minister Arye Deri (credit: GOVERNMENT PRESS OFFICE) Health Minister Arye Deri (credit: GOVERNMENT PRESS OFFICE)

Reasonableness test

For them, Deri’s attempts to use mental gymnastics to parse his words so that his promise was only limited to the former Knesset and not future Knessets, was too much to swallow for a thinking person.

According to most of these justices, the High Court of Justice probably has no right to veto the new Basic Law passed to save Deri from being disqualified by the prior basic law preventing a person sentenced to jail time (including a suspended sentence.)

Being ideologically right-wing, they also would be against disqualifying Deri using the “reasonableness test.” These justices, certainly Stein, Mintz and Elron, are card-carrying conservatives who do not believe the court should supplant the reasonableness of the government.

They just could not accept Deri lying directly to the court to get a lenient plea deal.

This response and one-sided vote caught the coalition off guard who expected a far more split vote than 10-1 (with even Elron being open to the Elections Commission disqualifying Deri instead of the court.)

A 7-4 or 6-5 vote would have given the coalition a much greater basis in public opinion to override the High Court, arguing that the court still is not balanced enough and needs more conservatives.

But the one-sided vote crossed all ideological boundaries.

One of the last few such major decisions which was one-sided, paradoxically, was the 11-0 High Court vote permitting Netanyahu to run and form a new government despite being indicted.

In different times where the right and left were not in an all-out verbal war and where Netanyahu himself was not in the cross-hairs for a potential future conviction, the right-wing justices joining against Deri might be enough to swing public opinion among the country’s right-wing rank-and-file.

The lopsided vote of an 11-justice bench seems to meet even the new standard that the government wishes to set for the court to veto government policies and show a rare falling in line for unity by the often passionately split justices.

But these are not normal times and the government is already all but dead set on revolutionizing the powers of the judiciary and the legal establishment. Much of the right-wing public may not care that right-wing justices view Deri as a liar, and may simply look at the result: the court seeming to ignore the will of the voters.

In that sense, the Deri ruling, including the surprising move by the right-wing justices, may be almost irrelevant, mainly just happening to serve as the inevitable final break between the coalition and its voters and the legal establishment, which was headed into a constitutional crisis no matter what.