Deri threats reveal Israel’s legal house of cards

“Close the doors, they’re coming through the windows,

Close the windows, they’re coming through the doors,

Close the doors, they’re coming through the windows,

Oh my gosh, they’re coming through the floors!”

These lines are familiar to generations of South African youth who have enjoyed the experience of pre-meal songs at Habonim camp. It’s not controversial for me to write that Habonim isn’t aligned to any of the parties comprising Israel’s new rightist coalition government. How strange then was it to read that, in response to the Israel Supreme Court’s recent judgment that as a convicted felon he cannot hold ministerial office, Aryeh Deri, the leader of the ultra-Orthodox Shas Party, responded with words seemingly lifted straight out of the “close-the-doors” song.

In his defiant reaction to the judgment, Deri said, “When they close the door on us, we’ll get in through the window. When they close the window, we’ll break through the ceiling.”

These are strange words, uttered in fraught times for the rule of law in Israel. The context in which Deri expressed an intention to re-enter the house of executive power by clambering in through the widows and ceilings is the following:

Deri is a twice convicted criminal, who in the early 2000s, served a two-year custodial sentence (apparently the sentence was reduced for good behaviour). In 2021, Deri was once again before the criminal court, this time on tax charges. To avoid a second stint in jail, he tendered a plea of guilty and entered into a plea-bargain arrangement. A condition of Deri’s plea bargain, as presented to the court, was that he would never again seek to hold public office. That solemn undertaking was then forgotten by Deri as quickly as it took the paroled Schabir Shaik to recover from a terminal medical condition to appear on the golfing greens of KwaZulu-Natal.

Deri’s Shas party is a substantial partner in Netanyahu’s rightist coalition. In return for assisting Netanyahu’s return to power, Deri was rewarded with the offer of two cabinet posts. In blatant contravention of the terms of his plea bargain, during December last year, Deri accepted the offer, and joined Netanyahu’s cabinet.

To allow Deri to be sworn in, the Knesset was required to amend legislation that had barred any politician convicted of a crime and sentenced to prison from taking up a ministerial role for seven years after their release. Under the legislative amendment, the seven-year prohibition would apply only if actual jail time was served. Deri, through his plea bargain and his above undertaking, had, of course, been able to evade precisely such a custodial sentence.

An Israeli civil society organisation petitioned the Supreme Court to set aside Deri’s appointment. The petition was successful. Ten of the 11 Supreme Court justices ruled that Deri’s ministerial appointment was invalid.

Supreme Court President Esther Hayut wrote in the decision that Deri had in the plea bargain stated that he would no longer seek to hold public office or deal with public money. The court, therefore, found that “under these circumstances, his appointment was stained by a flaw of extreme unreasonableness, and it seriously contradicts the basic principles that should guide the prime minister when he appoints ministers”.

Although Netanyahu has grudgingly accepted the ruling, with sad predictability, he and his allies have assailed the court’s decision. In doing so, they have presented the Deri case as one pitting unelected judges against the will of the majority of the electorate.

They have accused the court of judicial overreach, and have gone so far as to claim that it has trampled on the will of the people. Indeed, the so called judicial-reform agenda of the Netanyahu government is directed at hobbling the court’s ability to continue to hold the legislature and executive to account. One of the changes the government is working rapidly to push through would denude the top court of the ability to review legislation, appointments, and other government decisions.

Anyone familiar with South Africa’s history will recall that local politicians, likewise, have a long history of using the argument of judicial overreach to attack the judiciary. The populist contention both here and in Israel is that democracy requires that judges dare not venture into political terrain, and when they do, they become a threat to the democratic order.

Buttressed by a written Constitution and an entrenched Bill of Rights, the South African judiciary has, in the democratic era, been protected by a constitutional order in which the role and purpose of judicial review is legally embedded.

The Israeli judiciary lacks similar protection. This is because Israel has no written Constitution. Over the decades, several attempts to draft a formal Constitution have fallen through. Instead, Israel has evolved a system of basic laws and rights which enjoy semi-constitutional status

This is a perilous halfway position. Majority rule untrammelled by judicial checks and balances can result in what 19th century writer De Tocqueville referred to as “the tyranny of the majority”. The danger that De Tocqueville foresaw was that public opinion could become an all-powerful force, and that the majority could then tyrannise unpopular minorities and individuals. Democracy should, after all, be something more than a system that would allow two wolves and a lamb to vote on the lunch menu.

In spite of the lack of a written Constitution, the Israeli judiciary appears resolute in its determination to uphold the rule of law. As was stated by Justice Alex Stein in the Deri case, “We all bow our heads to the law, but the law bows to no one.” The entrance to high-government office should be through the front door, and not via upstairs windows and ceilings that have opened as a result of cynical political manoeuvring. The rule of law requires nothing less than that judicial rulings, even when they prove unpopular, be respected and not overturned by majoritarian decree.

• Gavin Rome is a senior counsel at the Johannesburg Bar. He has acted as a judge of the high court on several occasions.