Will Deri ruling accelerate the drive for judicial reforms? - analysis

Some Knesset members are arguing the decision is undemocratic.

 Israeli Prime Minister Benjamin Netanyahu with Health Minister and Interior Minister Arye Deri at a government conference at the Prime Minister's Office in Jerusalem on January 15, 2023.  (photo credit: YONATAN SINDEL/FLASH90)
Israeli Prime Minister Benjamin Netanyahu with Health Minister and Interior Minister Arye Deri at a government conference at the Prime Minister's Office in Jerusalem on January 15, 2023.
(photo credit: YONATAN SINDEL/FLASH90)

After the High Court of Justice ruled on Wednesday that Shas chairman Arye Deri cannot remain as a minister, responses from coalition members and supporters of the decision indicated that the case has become inextricably entangled in the judicial reforms proposed by Justice Minister Yariv Levin – and may lead to a more fevered drive to pass them.

Several politicians have already explicitly stated that the reforms must be passed in response to the High Court’s ruling.

Deputy Transportation Minister Uri Maklev (United Torah Judaism) said the ruling showed “the need to change the existing legal system. This ruling will become the driving trigger for fundamental legislative changes to create the required balances in the legal system.”

Finance Minister Bezalel Smotrich (Religious Zionist Party) said: “The Left claims that democracy is in danger, and the truth is that this is what it looks like today. We will continue to promote the reform of the judicial system for all citizens of Israel, and the High Court’s decision only proves once again how essential it is.”

Criticisms that the ruling is anti-democratic

A narrative has already begun to form in which the court’s decision is seen as overriding the votes of Israeli citizens. This builds on the Shas Party’s arguments that almost 400,000 of its voters had not been taken into account.

Shas leader MK Arye Deri is seen at the Knesset, on July 26, 2021. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)Shas leader MK Arye Deri is seen at the Knesset, on July 26, 2021. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

Politicians have begun to adopt the language to anti-reform protesters. Minister for the Development of the Periphery, Negev and Galilee Yitzhak Wasserlauf (Otzma Yehudit) said the decision was a “legal coup.”

Justice Minister Yariv Levin (Likud) said: The ruling given today tramples not only the vote of nearly 400,000 Shas voters, but also the votes of the majority of Israeli citizens, who knew all the relevant facts and voted for a government led by [Prime Minister Benjamin] Netanyahu, in which Arye Deri is a senior partner.”

The Shas Party has begun to post pictures of a Shas ballot on social media with the words, “The High Court has also discarded my voice.”

The solution to this reputed loss of the will of the people at the hands of the High Court is already being championed as judicial reform.

“Reform now,” Wasserlauf said, adding that the “unelected” High Court justices had rejected the votes of Israelis in the last election.

Not only coalition members have linked the Deri ruling to the passing of judicial reform. Opponents of the reforms have expressed sentiments indicating that they also see it as part of the same battle

Israel Bar Association president Avi Himi did not explicitly name the reforms, but he described the ruling as being part of broader legal troubles.

“There are independent and ethical judges in Jerusalem, and their independence must be protected and fought for,” he said. “We will not allow politicization of the judicial system, and we will continue to maintain a democratic state.”

The Black Flag movement responded to the Deri appointment ruling with a call for a renewed protest against the judicial reforms.

One of the petitioning groups in the Deri case, the Moral Purity Movement, said: “Even in the days when the coalition is promoting a coup d’état and a serious violation of the rule of law, and in the face of explicit threats from a number of elected officials, the High Court remains faithful to the law.”

The movement warned that the court’s decision could lead to the renewed promotion of the proposed judicial reforms.

“We hope that the discussion of the dangerous reform promoted by the justice minister will not be affected by the personal interest of Minister Deri, and that dangerous initiatives, such as the elimination of the Reasonableness Clause, will be seriously considered and will not be promoted casually only to qualify a renewed appointment of MK Deri to minister,” the movement said in a statement.

However, the movement’s fears are being realized, as Levin has said the ruling had “trampled” the votes of nearly 400,000 Shas voters, as well as those of “the majority of Israeli citizens.” He pledged to “fully correct” the “injustice.”

Coalition members have begun to single out as the problem the Reasonableness Clause, which served as grounds for disqualifying Deri from a ministerial position.

Likud MK Galit Distal Atbaryan said: “Ten judges did not decide whether Deri was a criminal or innocent, entitled or guilty. They decided whether it was reasonable that he would serve or not. Ten against more than two million people who answered the reasonableness test at the ballot box.”

UTJ MK Yitzhak Pindrus said: “The use of the Reasonableness Clause shows that the High Court is not the gatekeeper of the law, but the gatekeeper of its political agenda.”

The Reasonableness Clause allows the judiciary to interfere in administrative cases in which an action is beyond what is reasonable for a responsible authority.

The High Court ruled on Wednesday that Deri’s case was unusual in the extreme and met the conditions for intervention based on his long history of fraud, accepting bribes and, most recently, tax offenses

The answer to the specific problem of the Reasonableness Clause again appears to be the Levin reform proposal.

“The High Court of Justice made a scandalous decision that only increased the necessity of passing the reform and canceling the Reasonableness Clause,” Likud MK Eli Dalal said.

 The cancelation of the Reasonableness Clause is already part of the judicial reform proposed by Levin two weeks ago. Levin rejected the clause altogether, saying "there is no such thing as a Reasonableness Clause."

The cancellation of the Reasonableness Clause is already part of the judicial reform that was proposed by Levin two weeks ago. Levin rejected the clause altogether, saying, “There is no such thing as a Reasonableness Clause.”

However, on Wednesday, MK Simcha Rothman (RZP) presented an update to the proposal in which the Reasonableness Clause was mentioned. He detailed that it would be restricted from use on decisions by the prime minister and other elected officials – perhaps leaving room for it to be used against decisions by nonelected civil servants.

The impact of the Deri decision on the proposed judicial reforms can be seen by the increasing rhetoric being used to stir up resentment against the Reasonableness Cause and a hardening and updating of Rothman’s reform proposal on the clause.

Overturning the decision altogether could become a new goal for Deri’s supporters. Another key item in the proposed reforms is the Override Clause, which would allow the Knesset to strike down High Court decisions with a simple majority of 61 votes.

Rhetoric in support of the reforms could take on a new character, focusing on the perceived injustice to Deri and Israeli voters. The Override Clause could be proposed by Deri’s supporters as a positive development.

With new reasons to fight for and against the legal system and an updated narrative on protecting democracy, the reforms could see renewed popular support in the form of rallies on the street, mirroring those against them in Tel Aviv.