Will Netanyahu Follow the High Court’s Order on Deri?

Wednesday’s ruling by Israel’s High Court of Justice disqualifying Aryeh Deri from his positions as both health and interior minister has pushed the country into serious political turmoil amid the possibility of an unprecedented constitutional crisis.

Deri is head of Shas, the ultra-Orthodox Mizrahi party, which holds 11 seats in Netanyahu’s 64-seat majority of the 120-seat Knesset. Ten of the 11 judges who sat on the case ruled against the appointments of Deri, who is a close political ally of Prime Minister Benjamin Netanyahu, on grounds of “extreme unreasonability.” Last year, Deri was convicted on tax-related offenses and was given a suspended prison sentence, because he promised the courts that he intended to step down from power forever.

The Court further instructed the prime minister to remove Deri from his ministerial posts. Just three weeks into his administration, Netanyahu is caught between the political demands of his coalition and the possibility of a showdown with the High Court. He has no good options and little wiggle room, and public unrest on the streets is increasing in frequency and intensity.

And all of this is happening as U.S. National Security Adviser Jake Sullivan is visiting the country and as Netanyahu is preparing for both the visit of Secretary of State Antony Blinken and his own trip to Washington to meet with President Joe Biden.

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Arye Deri, 63, is the undisputed, revered head and one of the founders of Shas. Once considered the wunderkind of Israeli politics, he was appointed as interior minister at the age of 29, the youngest person to ever hold a cabinet position. Tall and charismatic, always elegantly dressed and usually holding a pipe, he was widely viewed as a bridge for the left and the right, religious and secular, and Mizrahim and Ashkenazim. However, over the years Deri has led his party to an increasingly ultra-Orthodox, right-wing platform.

In 1999, Deri was convicted of bribery, fraud and breach of trust; he was given a three-year jail sentence, which he served. At the end of 2012, ahead of the elections for the 19th Knesset, he returned to lead the Shas party. In May 2013, he was re-appointed to the role of Shas chairman, and he remained in politics until December, 2021, when he accepted the suspended prison sentence.

Despite this, Deri retained his position as head of Shas and ran as head of the party and ran in the November 2022 elections. However, despite his party’s strong showing,  he could not be appointed to a ministerial position, because the law barred any politician convicted of a crime and sentenced to prison from taking up a ministerial role for seven years after release.  Since Deri had been convicted and sentenced to jail time, which was then suspended, the Knesset had to drive through a legal amendment, according to which the seven-year prohibition applies only if actual jail time was served.

Petitions against the appointment were brought by several human and civil rights groups in Israel. In her decision on Wednesday, Supreme Court President Esther Hayut stated that [Deri] has been convicted … of offenses throughout his life, and he violated his duty to serve the public loyally and lawfully while serving in senior public positions … Having Deri in charge of two of the most important ministries in the government damages the image and reputation of the country’s legal system and contradicts principles of ethical conduct and legality.

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For much of the public who voted for Shas, Deri is not merely a politician but a symbol. From the beginning of the legal proceedings against him, Deri, like Netanyahu after him, has built his career by stoking anger against the legal system and fomenting Mizrahi unrest by claiming that he is a victim of the ostensibly racist Ashkenazi elite.

Following the court’s decision on Wednesday, Shas officials wrote, The court, which presumes to look after minorities, tossed away the voice and vote of 400,000 Shas voters … Today the court actually ruled that the elections are meaningless. The court’s decision is political and tainted with extreme unreasonableness.”

Netanyahu visited Deri at his home shortly after the decision and stated, “When my brother is in distress, I come to him.” In a further statement, the Likud, Netanyahu’s party, praised Deri’s  “extraordinary abilities and vast experience” and denounced the “severe personal injustice” of the verdict.

Another Shas minister, Yaakov Margi, told Israel’s public radio hours before the court ruling on Wednesday that “Netanyahu knows that if Deri is not in the government, there is no government.” In response, Deri declared, “If they close the door, we’ll come in through the window.” 

And indeed, with their 11 seats and unwavering loyalty to Netanyahu, Shas and Deri are numerically and politically crucial to Netanyahu’s coalition.

The ruling against Deri’s appointments is likely to further fan the flames around the changes in the legal system proposed by the ultra-right Religious Zionist party. As described in Moment’s award-winning story, “High Court in the Hot Seat,” (October, 2021), these proposed changes are part of an ongoing culture conflict in Israel regarding not only the role of courts but the very meaning of democracy.

In fact, Justice Minister Yariv Levin (Religious Zionism) presented the framework for these changes only after the petitions against Deri’s appointments were brought to the court—a move largely seen as a warning shot across the bow.

The court refused to heed that shot, and, in response, Levin declared that he would do “everything necessary so that the blatant injustice done to Rabbi Arye Deri, to the Shas movement and to Israeli democracy will be fully repaired.” He added that he was “saddened that the heads of the judiciary failed to respect the people’s will, the Prime Minister’s judgment, and the Knesset’s decision that expressed confidence in the current government.”

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Since decisions by the High Court cannot be appealed, Israel’s Attorney General Gali Baharav-Miara immediately sent a letter to Prime Minister Benjamin Netanyahu telling him that he must fire Deri. 

In theory, Netanyahu could also dismiss Deri and appoint him as an alternate prime minister. But this would be likely to encounter numerous complex legal hurdles and would probably also be challenged at the High Court. 

Most unlikely, Netanyahu could refuse to comply with the court’s ruling—a situation for which there is no precedent in Israel.

As he has shown over his many years in power, Netanyahu tends to be aversive to showdowns. And it’s hardly in his best interests to force one, since he himself is currently on trial on charges of fraud, breach of trust and bribery. (Netanyahu denies these charges). Nor is he likely to defy the courts given all the attendant international diplomatic attention that would ensue.

It is likely that the coalition will step up its legislative blitz, including the legislative override that would allow the Knesset, with a vote of 61 of the 120 lawmakers; relegislation of a law that the High Court struck down; changes in the Basic Law on the Judiciary; and removal of unreasonableness as a basis for the High Court to rule on anything. These high-stakes moves would essentially strip the Court of most of its powers while, critics warn, increasing the power of politicians over all aspects of public life.

MK Simcha Rothman (Religious Zionism), a leader of these legislative moves, told Haaretz that the government was elected “to restore sovereignty to the people. The details of the plan can be discussed, whether within or outside the bloc, but restoring sovereignty to the people is outside of any debate.”

Meanwhile, the tensions are already playing out on the streets. Last Saturday night, more than 85,000 people demonstrated throughout Israel, claiming that the judicial changes could destroy Israel’s democratic institutions. These demonstrations were not met with any violence from the coalition, but when demonstrators announced Wednesday night that they are setting up a permanent protest camp in front of the justice minister’s home, they were attacked by several of Deri’s and Levin’s supporters.

The police expect that the demonstrations against the overhaul will increase in size and frequency, and are also bracing for the possibility of counter-demonstrations.  And, given the current atmosphere, they have also increased security around Hayut, the president of the Supreme Court.

Opening image: The Israeli Supreme Court building in Jerusalem. (Photo credit: Adapted from wikimedia images)

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