The Inherent Limits on the Override Power in the Israeli Constitution

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The Supreme Court will deliberate, in a panel of eleven justices, on the validity of Amendment No. 11 to Basic Law: The Government, which was adopted on the eve of the formation of the 37th government. This amendment, often referred to as the “Deri Law” by the opposition, was allegedly intended to enable the appointment of Knesset Member Aryeh Deri as a minister. The petitions also seek a determination that Deri’s appointment as a minister is illegal and unreasonable. In the background, the Shas party won eleven seats in the elections, and without it, Prime Minister Benjamin Netanyahu would not have a coalition. Nearly four hundred thousand people voted for Shas, despite its leader having been convicted of criminal offenses twice: about twenty years ago, Deri was convicted of bribery, fraud, and breach of trust, resulting in actual imprisonment; in early 2022, he was convicted as part of a plea bargain of tax offenses, sentenced to a suspended prison sentence and a fine.

This article consists of three parts. First, I will examine Deri’s eligibility to serve as a minister according to the wording of Basic Law: The Government from 2001. I conclude that he is eligible to serve despite the recent suspended sentence imposed on him. Second, I will discuss the reasonableness of Deri’s appointment as a minister, concluding that the appointment does not amount to extreme unreasonableness warranting judicial intervention in the process of forming a government. Finally, I will examine the validity of Amendment No. 11 to Basic Law: The Government, which sought to ensure Deri’s eligibility to serve as a minister. I will argue that due to its personal nature, it does not apply to Deri.

1. Eligibility to Serve as a Minister Under Basic Law: The Government (2001)

The question of Deri’s eligibility revolves around the interpretation of Section 6(c)(1) of Basic Law: The Government from 2001. This section states: “A person shall not be appointed as a minister if he has been convicted of an offense and sentenced to imprisonment and on the day of his appointment seven years have not yet elapsed since the day he completed serving his sentence or from the day of the judgment, whichever is later, unless the Chairman of the Central Elections Committee determines that the offense for which he was convicted, under the circumstances, does not involve moral turpitude.” The question of whether this section applies to someone who has been sentenced to a suspended sentence only is an issue of interpretation that has not yet been resolved by the Supreme Court.

A. The Positions of the Legal Advisors to the Government and the Knesset

The Attorney General, Adv. Gali Baharav-Miara, opined that this section applies even if the candidate for minister was sentenced to a suspended sentence. Therefore, she demanded that Netanyahu not appoint Deri as a minister unless the Chairman of the Central Elections Committee determines that the tax offenses of which Deri was convicted do not involve moral turpitude. The Attorney General presented three arguments supporting her position. First, the Knesset knows how to state explicitly when disqualification is contingent upon serving an actual prison sentence. This was done in Basic Law: The Knesset regarding eligibility to serve in the Knesset, which disqualifies only those sentenced to actual imprisonment. Second, the right to be elected is more strongly protected in the context of elections to the Knesset than regarding serving in the government. Third, the Penal Law defines “imprisonment” as including suspended imprisonment.

The Knesset’s legal advisor added a fourth argument. The disqualification period for ministers convicted of criminal offenses from serving in office begins from the day the sentence is completed or from the day of the judgment, whichever is later. This indicates that, unlike Knesset members—whose disqualification period begins from the completion of actual imprisonment—being sentenced to a suspended sentence is sufficient to disqualify ministers. Therefore, the legislator stated that the disqualification period for ministers may begin from the date of the judgment, not necessarily from the date of completing imprisonment.

B. Comparing the Eligibility Conditions for Knesset Members and Ministers

Although Basic Law allowed Deri’s election to the Knesset, it prohibited his appointment as a minister in the government. I will begin by examining the position of the Knesset’s legal advisor and then proceed to discuss the Attorney General’s stance. The Attorney General believed that the Knesset sought to apply a “stricter normative eligibility standard” to ministers than to Knesset members. However, a review of the debates in the Knesset’s Constitution, Law, and Justice Committee in 2001 reveals that the Knesset explicitly equated the eligibility rules of ministers and Knesset members. Based on this comparison, the Knesset sought to ease the eligibility conditions for ministers compared to the law applicable to them under the 1992 Basic Law. The easing aimed to bring the law concerning ministers closer to that of Knesset members.

During these discussions, the committee’s legal advisor, Adv. Sigal Kogut, explained to the members of the Knesset that the law “is similar, but not identical.” This explanation suggests an alternative interpretation for the gap between Knesset members and ministers regarding the applicability of the disqualification period. Instead of arguing that ministers (unlike Knesset members) are disqualified from serving if they are given a suspended sentence, she explained that the difference lies in the fact that concerning ministers, “the judgment does not have to be final.”

C. Legislative Laziness

The fact that the Knesset explicitly stated “actual imprisonment” with regard to Knesset members does not necessarily mean that a suspended sentence is sufficient to disqualify ministers. Often, the Knesset is “lazy” in its wording, and the court draws analogies from one arrangement to another, even when the two were legislated in close proximity. For example, the Saving Clause in Basic Law: Human Dignity and Liberty, enacted after Basic Law: Freedom of Occupation, includes a shortened formulation that does not specify that the interpretation of the old law should be in light of the provisions of the Basic Law. Despite this omission, the prevailing interpretation remains that the Saving Clause should be read as if the provision exists.

D. Policy Considerations

Policy considerations also support the interpretative conclusion that Basic Law: The Government does not disqualify ministers who have received a suspended sentence. In cases of interpretative doubt, the interpretation that protects the right to be elected and to serve should be favored. Although only the Knesset is directly elected by the public, ministers are indirectly elected through the parliamentary system as part of coalition-building efforts. Additionally, creating a discrepancy between the eligibility to serve as a Knesset member and as a minister, when not clearly mandated by the Basic Law, is problematic.

E. Interpretation of “Imprisonment” under the Penal Code

The Attorney General posited that what Basic Law: The Government omitted, the Penal Code supplements, allowing the court to impose imprisonment in the form of a suspended sentence. However, an examination of the Penal Code reveals that an individual sentenced to a suspended sentence does not actually serve the punishment unless a judicial order activates it. Thus, it is difficult to interpret Basic Law: The Government as requiring a waiting period of seven years from the day an individual finishes serving a suspended sentence, given that by its very definition, a suspended sentence generally does not require actual "serving." Moreover, the Avni ruling established that due to the supreme status of Basic Laws, regular legislation cannot dictate the interpretation of Basic Laws. For example, the Court determined that the term “law” for the purpose of the Limitation Clause includes judicial development (common law) of the Supreme Court, despite this interpretation contradicting the term “law” as defined under the Interpretation Law, which refers only to Knesset legislation or ordinances. Therefore, even under the 2001 text of Basic Law: The Government, a suspended sentence did not disqualify a minister from serving in the government.

2. Reasonableness of Deri’s Appointment as Minister

The Knesset is not required to apply a reasonableness standard when forming a government, as the electorate's decisions are not subject to judicial review based on reasonableness. The Knesset is tasked with translating election results into the formation of a government. However, the fact that Deri is eligible to serve as a minister does not imply that appointing him is reasonable. Thirty years after the Deri-Pinhasi ruling, the question arises again regarding the reasonableness of the Prime Minister’s decision to appoint Deri as a minister. That precedent established that "eligibility and discretion are distinct," and if the appointment is deemed “extremely unreasonable,” the court may require the Prime Minister to dismiss him under the authority of Basic Law: The Government. The rationale is that administrative law principles apply to the executive branch, imposing additional restrictions on ministerial appointments that do not apply to Members of Knesset. The justification for the Deri-Pinhasi precedent is that ministers hold executive power, oversee budgets and public employees, and are responsible for secondary legislation within their jurisdiction. Ensuring the integrity of public service is essential.

Although less than a year has passed since Deri was convicted in the Magistrate’s Court for tax offenses under a plea bargain, the Court emphasized that "the offenses attributed to the defendant do not involve malice or intent to deceive the tax authorities." Additionally, Deri was considered "passive" concerning the commission of the offenses, and "no harm" to the public treasury was proven. Nine years have passed since the commission of the offenses in 2013, during which the investigation lasted approximately seven years, amounting to a denial of justice. The case began with "wide-ranging allegations of governmental corruption but concluded with minor tax offenses." The Court also noted that similar cases of comparable scope and gravity had been resolved by "paying fines alone, without accompanying criminal proceedings." Therefore, it is questionable whether Deri’s appointment as minister amounts to extreme unreasonableness.

Nevertheless, the question remains whether Deri misled the Magistrate’s Court by presenting himself as having retired from public life but subsequently chose to return to the Knesset and serve as a minister. The verdict did not specify the duration or nature of Deri’s supposed departure from public life. It was only noted that he resigned from the Knesset before the sentencing. Moreover, the Court emphasized that "[resignation] does not imply any form of criminal sanction as part of the plea agreement." Although the Court determined that because Deri resigned from the Knesset, the Attorney General "would not argue the matter of moral turpitude before the trial court," this agreement was mandated by Basic Law: The Knesset and had no bearing on the interpretation of the term "imprisonment" in Basic Law: The Government.

According to Basic Law: The Knesset, "A Knesset member convicted of a criminal offense, where the court, at its own initiative or at the request of the Attorney General, determines that the offense involves moral turpitude, shall be suspended from serving in the Knesset from the day the court's decision is made until the judgment becomes final." Once the judgment becomes final, the suspension becomes a termination of office if the offense involves moral turpitude. Basic Law is more stringent with those already serving in the Knesset, as they are automatically disqualified from serving for offenses involving moral turpitude, even if no prison sentence is imposed. The rationale is that the public may not have been aware of the conviction during elections and thus did not take this information into account when voting.

In the case of Deri, since he chose to resign, the Attorney General did not raise the issue of moral turpitude. Furthermore, Deri did not mislead the prosecutorial authorities. When the plea bargain between the state and Deri was signed, the media reported that Deri’s resignation "eliminates the need to determine whether his actions involve moral turpitude," and he would be eligible to run for the next Knesset. It was further explained to the public that "the resignation from the Knesset was not a requirement of Mandelblit but rather Deri’s initiative. By doing so, he effectively eliminates the need to discuss the issue of moral turpitude. In this way, he believes he can remain the leader of Shas and control the party, and later be re-elected to the Knesset and even appointed as a minister—if he successfully overcomes the hurdle of the High Court of Justice." It is reasonable to assume that Deri would not have agreed to the plea bargain if he believed it would prevent him from returning to public life. The prosecution authorities and the court would undoubtedly have stated explicitly that Deri was prohibited from running for the Knesset or serving as a minister for seven years if such a commitment was part of the plea bargain.

The question remains whether Deri’s convictions from twenty years ago disqualify him from serving as a minister. On this matter, the court has already ruled twice in the last decade that he is not disqualified from serving as a minister. It is also doubtful whether it is appropriate to argue that past convictions should be combined with the present conviction to disqualify Deri from serving. There is a limit to how much a society can pursue an individual for past actions. Moreover, the public was aware of his most recent conviction at the time of the elections, and still chose to elect him to the Knesset and, indirectly, to the government.

My conclusion is that Deri was eligible to serve as a minister under the Basic Law: The Government of 2001. His appointment as a minister also does not amount to extreme unreasonableness that would require judicial intervention. However, the Basic Law from 2001 is seemingly no longer valid. Deri’s appointment must be examined under the newly amended Basic Law, which was revised in 2022, as I will now proceed to do.

3. Personalized and Retrospective Legislation

Personalized and Retrospective Legislation Following the Attorney General’s opinion, it was expected that coalition members would petition against her interpretation before the High Court of Justice. Although the Attorney General referred them to the decision of the Chairman of the Central Elections Committee, the latter is only authorized to decide on the issue of moral turpitude. The question here is preliminary and concerns whether a suspended sentence disqualifies one from serving as a minister. Instead of appealing to the judiciary, the coalition amended section 6(c) of the Basic Law, explicitly stating that it applies only in cases of actual imprisonment. According to proponents of the amendment, it was intended to "clarify" the existing law rather than change it. They also believe that this is the desired law to create "harmony" in the disqualification rules for serving in the Knesset and the government. However, since they did not understand the purpose of the previous arrangement, which established a "race" from the day the prison sentence was completed or from the day of the judgment, whichever was later, to address the lack of a mechanism for suspending ministers, the amendment to the Basic Law materially changed the pre-existing legal situation. Under the new wording of the Basic Law, a seven-year waiting period applies only from the end of serving an actual prison sentence.

In this analysis, I will examine the legal doctrines available to the court when evaluating the validity of the amendment to Basic Law: The Government. Although the petitioners rely on the doctrine of "Abuse of Constituent Authority," I will argue that it is preferable to examine the amendment under a substantive doctrine concerning the Jewish and democratic character of the state. Finally, I will propose that the appropriate constitutional remedy lies in the form of a sustaining interpretation.

A. The Doctrine of "Abuse of Constituent Authority"

The petitions seek to challenge the amendment to the Basic Law through the doctrine of "Abuse of Constituent Authority." The advantage of this approach is that the court has previously been willing to apply this framework to exercise judicial review over Basic Laws. The court has interpreted this doctrine as focusing on the process of enacting Basic Laws rather than their content. As such, it was deemed less confrontational towards the Knesset's powers than doctrines that seek to intervene in the substance of Basic Laws, such as the "Unconstitutional Constitutional Amendment" doctrine.

As part of this doctrine, the court, in the Stav Shafir ruling and later in the Alternating Government case, established that personal legislation aimed at benefiting or harming a specific individual or political coalition constitutes abuse of Basic Laws. Such legislation contradicts the principle of formal rule of law, which requires the Knesset to enact general legislation applicable to an undetermined public. In such cases, the burden shifts to the respondents to demonstrate special justifications for such legislation.

B. Difficulties with the Doctrine of "Abuse of Constituent Authority"

I contend that the doctrine of abuse of constituent authority is problematic for several reasons. First, while it purports to interfere less with constitution-making than the "Unconstitutional Constitutional Amendment" doctrine, it is actually more intrusive because it seeks to interfere with the very authority to create a constitution, not merely to amend it.

Second, since this doctrine is couched in formal-procedural terms, it is easy for the Knesset to circumvent the court’s formalism through legislative formalism. As such, the harm caused by this doctrine, which generates severe conflict between governmental branches, outweighs its benefits.

Third, this doctrine creates significant chaos within the legal system. One of the characteristics of a formal constitution is the clear identification of constitutional material. According to the Mizrahi Bank ruling, anything labeled "Basic Law" was part of the Israeli constitution. Now, it must be examined whether a Basic Law meets the criteria of the doctrine of abuse of constituent authority.

Finally, this doctrine establishes a misguided hierarchy of values for the state. A slight deviation from the principle of formal rule of law may result in the court annulling a Basic Law based on the doctrine of abuse of constituent authority. This was the case in the Stav Shafir ruling concerning a budgetary addition of NIS 11 billion to the state budget, a relatively insignificant sum. However, if there is harm to the fundamental values of the Jewish and democratic state, only severe harm may lead to court intervention under the "Unconstitutional Constitutional Amendment" doctrine.

The court left such a case unresolved. Israel’s history does not support prioritizing formal rule of law principles over the principles of a Jewish and democratic state in a manner that justifies absolute protection of the former and limited protection of the latter. Indeed, in the name of formal rule of law, horrific actions have been committed throughout human history.

C. The Fundamental Values of a Jewish and Democratic State

Regarding the Deri case, there is no doubt that the Knesset, in enacting Basic Law: The Government prior to the government's swearing-in and granting validity to the amendment before its publication in the official gazette, intended to put a "belt over suspenders." It sought to ensure that Basic Law: The Government from 2001 could not be used to disqualify Deri from serving as a minister. While often legislative outcomes must be examined to prove discrimination, here the illegitimate subjective purpose of amending the Basic Law is evident to all.

Although, as part of a proper constitutional dialogue between branches of government, the court sometimes waits for Knesset legislation in the shadow of judicial proceedings, this was not a case of legislative action meant to affect an individual's legal status.

Personal legislation in the individual sense (and I am not addressing institutional personal legislation in this analysis) is unacceptable even when enacted through Basic Law, as it contradicts the principles of substantive rule of law and the fundamental values of the Jewish and democratic state. These principles were identified as foundational values of the state in Section 7A of Basic Law: The Knesset, to the extent that they have prevented individuals from running for the Knesset if their aim is to alter these values from within.

The most basic protection of citizens' rights is the democratic character of the state. We elect the Knesset to enact general laws applicable to an indeterminate public. Members of Knesset who legislate laws that also apply to themselves are presumed to legislate with the public's benefit in mind. This presumption is negated when legislation is personal. In such cases, the legislature becomes both judge and executor. Personal legislation means a severe infringement of the principle of separation of powers, thereby endangering the liberty of all citizens.

D. Sustaining Interpretation

A constitutional remedy that entails applying the amendment to Basic Law: The Government to the next Knesset, as suggested by Justice Melcer in a minority opinion in the Alternating Government case, is neither appropriate nor sufficient.

Instead, the proper remedy in this case is to interpret Amendment 11 to Basic Law: The Government through a sustaining interpretation so that it does not apply to Deri or sitting Knesset members charged with criminal offenses. Sustaining interpretation assumes a hierarchy of constitutional values, and its application in the Hassan case amounted to applying the "Unconstitutional Constitutional Amendment" doctrine.

Conclusion

The current saga surrounding Deri’s appointment reveals a severe governance failure on the part of state authorities. To avoid invalidating the amendment to the Basic Law, it is appropriate to adopt a sustaining interpretation. According to this interpretation, the amendment to Basic Law: The Government is invalid concerning Deri, and his legal status should be determined under the previous Basic Law.

A society that values its continuity must encourage the hearing of dissenting voices, for only through engagement with criticism can growth occur. This is the essence of the Jewish character of the state, not just its democratic character.

Suggested citation:

The Inherent Limits on the Override Power in the Israeli Constitution: The Story of the Override from Section 4 of Basic Law: The Knesset through Retroactive Amendments to Supra-Constitutional Principles, Grunis Book 291, 291-330  (Aharon Barak et al. eds, 2023) [Hebrew].