In a rare step, Attorney General Gali Baharav-Miara announced on Tuesday that she would not defend the appointment of Shas leader Aryeh Deri as interior minister and health minister in proceedings before the High Court of Justice, in which the petitioners are seeking to overturn his ministerial duties due to his multiple past convictions.
The decision amounts to a strong rebuke from the government’s attorney general and demonstrates his strong opposition to Deri’s appointment.
The move comes amid already strained relations between Baharav-Miara and the new government, with the former having publicly criticized the new coalition’s legislative program and members of the latter strongly condemning her for her comments.
In a High Court filing, the Attorney General’s Office informed the court that after speaking with Prime Minister Benjamin Netanyahu about the matter earlier this week, “the Attorney General has decided that she will not could not defend its position regarding the appointment of MP Deri as Minister of the Interior, Minister of Health and Deputy Prime Minister.
The office noted that the attorney general, however, allowed Netanyahu and Deri to hire outside legal counsel to defend Deri’s High Court nomination.
He also said Baharav-Miara would represent the government against a separate petitioner’s call to overturn legislation passed last month that allowed Deri’s appointment despite the fact that he was recently given a suspended sentence.
The Attorney General is the primary legal adviser to the government and generally represents the state and its departments in legal proceedings against government action.
Cases have occurred in the past where the Attorney General has refused to do so, but these are extremely rare. One such case occurred when former attorney general Avichai Mandelblit refused to defend a 2017 law retroactively legalizing West Bank settlements built on private Palestinian land.
Several NGOs have filed petitions in the High Court against Deri’s appointment as minister, arguing that his 2022 conviction for tax charges, as well as his 1999 conviction for corruption and a third conviction for breach of trust from 2003, make his nomination fraud “unreasonable”.
Shas party leader Aryeh Deri arrives for a hearing at the Jerusalem Magistrate’s Court on February 1, 2022. (Yonatan Sindel/Flash90)
The petitions also argue that legislation recently passed by the new government, amending one of Israel’s quasi-constitutional Basic Laws to allow Deri to be nominated, was illegitimate since the law was passed due to the political considerations of Israel. an individual politician and the new government.
The attorney general’s office did not detail why Baharav-Miara declined to defend Deri’s nomination, but will do so in a formal court response it will file on Wednesday.
According to multiple reports on Monday, the attorney general believes Deri’s past criminal convictions mean her appointment as minister is unreasonable, although she will oppose the petitions’ assertion that the amendment to the Basic Law is illegitimate.
Later on Tuesday, Prime Minister Benjamin Netanyahu, who is the lead defendant in the motions, filed his legal response in court, in which he asked the High Court to dismiss the motions against Deri’s appointment and against the change in the law that permitted it.
Netanyahu’s response was filed by a team of independent lawyers, due to Baharav-Miara’s refusal to defend the government’s position.
In it, Netanyahu’s legal team argued that the court had no reason to interfere in the appointment of government ministers and that the new legislation was legitimate.
Shas leader Aryeh Deri (right) speaks with Likud leader Benjamin Netanyahu (top left) and Likud MK Yariv Levin (bottom left), during Levin’s election as president from the Knesset on December 13, 2022. (Yonatan Sindel/Flash90)
Specifically, Netanyahu’s defense argued that the legislation, an amendment to the Basic Law: Government, could not be challenged in court since it was passed by the Knesset in its role as constitutional authority.
Before the Basic Law was amended last week, it stipulated that a person sentenced to prison within the last seven years could not serve as a government minister unless a judge ruled that it does not involve “moral turpitude”, although it does not specify whether this includes a suspended sentence or simply a custodial sentence, which means that the interpretation is up to the courts.
Since Deri received a suspended sentence during his January 2022 sentencing — part of a lenient plea deal that was reached because the judge was falsely convinced that Deri was retiring from public life — the case was to be referred to the Central Election Commission headed by Judge Yitzhak. Amit who was to speak out against the head of Shas.
But the government’s amendment to the Basic Law expressly states that only those who receive a custodial sentence should be barred from ministerial office, thus avoiding a referral to the central election commission and paving the way for Deri’s appointment.
“The petitions must be totally rejected because there can be no interference in the legislation of the Basic Laws by the Knesset in a manner which would constitute an improper and unprecedented interference by the Honorable Court in the role of the Knesset as constituent assembly,” Netanyahu’s legal team said. wrote in his response to the court.
Netanyahu’s lawyer also argued that the court had no authority to exercise judicial review over Netanyahu’s decisions as prime minister or the Knesset’s decision to express confidence in the new government and its ministers.
From left, ministers Yoav Gallant, Aryeh Deri, Benjamin Netanyahu, Yariv Levin and Eli Cohen at the Knesset on December 29, 2022. (Yonatan Sindel/Flash90)
“There is no basis for judicial intervention in the prime minister’s decision to appoint Deri as minister due to the wide discretion granted to the prime minister in appointing his ministers,” Netanyahu’s lawyers argued.
In addition, they argued that the past four years of political instability, during which five elections have been held, have led to “unprecedented circumstances” which forced the Prime Minister to restore political order.
“There is no way to bring about governmental stability without appointing the leader of the Shas party to a ministerial portfolio,” Netanyahu’s lawyers argued.
Former prime minister and opposition leader MK Yair Lapid blasted Netanyahu’s response, calling it “totally absurd and completely false” in a tweet on Tuesday afternoon.
“The circumstances of Deri’s appointment are by no means ‘unprecedented circumstances’, it is a perfectly normal political process to establish a coalition similar to many in the past, and the positioning of convicted felons key positions is the last thing that will bring about governmental stability,” Lapid wrote.
Following his application to the High Court on Tuesday, Baharav-Miara was given until Wednesday to file his response to the motions. A hearing on these petitions is scheduled for Thursday morning. It will be broadcast live on the Internet.
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