Deri’s disqualification proves Israel’s need for ‘urgent’ judicial reform, says legal expert

The ruling proves that the Supreme Court “seeks to exercise power over every aspect of Israeli life, even the outcome of elections,” says legal expert Eugene Kontorovich.

By Debbie Reiss, World Israel News 

Legal expert Professor Eugene Kontorovich said the High Court’s dramatic ruling disqualifying Shas leader Arye Deri from his ministerial position shows the need for “urgent reform” of the judiciary, since striking down the appointment was based not on law but on the court’s own “notions of propriety.”

The judges ruled Deri’s appointment “unreasonable in the extreme” as a result of past convictions.

According to Kontorovich, director of International Law at the Jerusalem-based Kohelet Policy Forum, the court did not invalidate Deri’s appointment as health and interior minister because it contradicted the law, and “all agree the law allows for the appointment.”

“Rather, they said that appointing him in particular, given his checkered past, is ‘unreasonable’ – in other words, a bad idea. That is a reasonable policy position, but it has nothing to do with what the judges are supposed to be doing – interpreting law, or minority rights,” he said.

The ruling proves that the Supreme Court “seeks to exercise power over every aspect of Israeli life, even the outcome of elections.”

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“That the Supreme Court can dismantle an elected coalition based not on the law, but on its own notions of propriety, powerfully illustrates the need for urgent reform,” he said.

Supreme Court President Esther Hayut was one of 11 justices who voted to strike down Deri’s appointment.

Last week, Hayut accused Justice Minister Yariv Levin of launching an “unbridled attack on the justi ce system as though it was an enemy” with his proposal to overhaul the judiciary over which she presides.

It was an unprecedented attack by a sitting Supreme Court president against a ruling coalition, and one Kontorovich deemed “horrific” and “dangerous.”

Of all the attacks against the reform, which include claims that it will destroy Israel’s democracy; that the “illegitimate” Netanyahu-led government is launching a coup; that the reform is a “pogrom”; and that only a largescale, orchestrated campaign of public rebellion will stop it, the “most dangerous rhetoric” is from Hayut herself, Kontorovich told World Israel News in an interview.

Engaging in a debate about legislation that affects the Supreme Court and “criticizing it preemptively before its even advanced in the Knesset means she’s completely prejudiced now,” Kontorovich said.

“In any normal democracy, judges cannot talk about legislations in advance of it coming before them and they certainly cannot criticize the legislation publicly that affects them – it’s a conflict of interest, she’s expressing an opinion outside of court about something she might have to judge,” he explained.

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“In the U.S., the Supreme Court never talks about bills that they have to decide the constitutionality of before they’re passed – it makes them prejudiced,” he added.

He accused Hayut of “waging a political campaign” as if she “were a member of the opposition.”

“How can she speak out about legislation that limits her powers? In [doing so] she’s saying nothing can limit the powers of the court. That’s quite horrific,” he said.

For the past decade, the Kohelet Policy Forum has advocated for Israel’s judiciary to more closely reflect the U.S. system, in which the executive branch has more control over the appointment of judges.

The left-leaning judiciary has held far too much power for too long, Kontorovich said, and the Supreme Court effectively “controls every aspect of life.”

“In most countries, judges are picked by democratically accountable representatives of the people. In Israel, it is the judges who pick the politicians,” he said.