The Holtz-Lechner petition called the “Fortress of Democracy” attacks on all fronts: cancellation of the Deri clause; Cancellation of the clause’s immediate entry into force; its cancellation due to a hasty legislative procedure; Shackle Deri to the conclusion of the Magistrate’s Court that Deri should exclude himself from public affairs (“judicial silence”); the extreme improbability with which the appointment is tainted; Ineligibility for appointment as long as the chairman of the election committee does not determine if there was dishonor in his actions.
By the way, the chairman of the election committee, Judge Yitzhak Amit, is also the judge on duty who issued a conditional order that teaches about the seriousness and willingness to discuss the petition. The appointment itself is pending a ruling on the petition. President Esther Hayut responded to the request to urgently set the hearing and it was set for January 5 in front of 11 judges.
And now we need to see the answers to the petition. Since this is private legislation, the government itself is not a formal address. The petition is addressed to the Knesset, the coalition factions and Knesset members Netanyahu and Deri. The legal advisor to the government was entered as a respondent to the petition. An educated guess about her position: the law and the appointment cause difficulties but there is no legal impediment to their transfer.
2. Two legal doctrines make it possible to invalidate a fundamental law. The first, the “unconstitutional constitutional amendment” which focuses on the content of the legislation. Suppose it were determined that women do not have the right to vote or that elections will be held once every ten years. In such a case, even if it is fundamental laws, they would be disqualified (at least as long as there is no superseding clause).
The second doctrine is the “abuse of the constituent power”, on which the present petition is based. “What is common to all types of ‘abuse of the constituent authority’,” the petition reads – “in all of them, the constituent authority acts contrary to its duty not to use the powerful constituent power in its possession for needs that do not derive from its duty of loyalty to the public, such as political needs, personal needs, and the like.”
And in another place: “The amendment legislation to the Basic Law was not done for the purpose of shaping the constitution in the public interest, as an action carried out by virtue of their loyalty as representatives of the people and for the people in their capacity as a constituent authority, but it was done in order to gain power, to give a convicted tax offender the ability to serve as a minister in three different government ministries.” By the way, the question of the loyalty of Knesset members when they came to support a criminal defendant for the prime ministership was raised by Judge Dafna Barak-Erez in that ruling: “Knesset members are in fact trustees of the public, and they have fiduciary duties towards it… Just as I said that Knesset members must consider how they will protect their citizens Israel against various threats, security, health and others, so they are expected to consider considerations related to the rule of law.”
The two High Courts, the one dealing with the accused Netanyahu, and the current one dealing with the convicted Deri, are concerned with purity of character and the rule of law – considerations that members of the Knesset must consider. When they come to support the accused in forming a government or when they amend a basic law in favor of a convicted person. In Netanyahu’s case, the content of the basic law prevented the judges from thwarting the nomination.
In the present case, the content of the law in itself can be legitimate in the sense that in both cases the limitations for appointment are cut and gnawed away. A defendant can form a government and a minister can be appointed even if he is sentenced to a suspended sentence “only”.
The current law is not the first that Deri has changed in his favor. After Deri went to prison in September 2000, the law was amended so that the parole board could shorten a prison term by half and not just by a third
I mean, there is nothing new in Deri’s universe. Neither by conviction nor by misuse of legislative power for personal needs. And we didn’t mention the Bar-On Hebron case – the confusion over the appointment of a legal adviser to the government to rescue Deri. The problem is that this abuse has become common and accepted among us. Especially the abuse of fundamental laws for political purposes. “The starting point,” says Prof. Amnon Richman, “is that the amendment was anchored in a coalition agreement, probably it should have been determined that the clause was void. However, the coalition bypassed this and quickly went to amend the Basic Law as a condition for the swearing in of a government.”
Retired Vice President of the Supreme Court Hanan Meltzer quoted Dr. Amir Fox in one of the High Courts: “The recent revenues break records of amending fundamental laws repeatedly according to political whims. The most extreme amendment was the ‘exchange government’ which literally changed the system of the regime in Israel, and this within Several days of discussions and without giving a real opportunity to think about its meanings.”
In the current petition, Holtz-Lechner links the Deri law to this phenomenon and hopes to put an end to it: “It seems that this phenomenon must be put to an end, and there is no more extreme example than the one before us that requires the intervention of the judicial authority in the misuse of the constituent authority.”
And this is indeed the big question: Will the judges of the High Court come to the conclusion that the red lines have been crossed that require the annulment of a basic law. Because it is personal, because it was tailored to the needs of a convicted criminal, because its legislative process was riddled with serious flaws, because it entered into force while skipping publication in the records.
4. Deri’s defense attorney, Adv. Navot Tel-Zur, reasons why the appointment is reasonable. It is worth paying attention to this argument: “The Prime Minister wanted Rabbi Deri to be a senior kosher in his government, among other things, on the background of Rabbi Deri’s positions on political and security issues, which he demonstrated over many years in governments Israel and its members in the political-security cabinet, since the tenure of the late Prime Minister Yitzhak Rabin until his tenure in the previous government.”
What is actually hidden between these lines? When the Prime Minister is faced with complex security challenges, it is better not to have only Bezalel Smotrich and Itamar Ben Gvir by his side. Aryeh Deri with his experience and moderation should also be there. True, this is not a legal argument that the court is authorized to consider; It is true, indirectly we are setting up corruption here or at least lowering the threshold of corruption in political appointments. And on the other hand, Tel-Zur is also right. As long as these are Netanyahu’s partners, as long as these are the ministers who run our lives and are responsible for our peace and security – Aryeh Deri had better be there as well.