The Deri Appointment: Further Hearing Rules with Bite, Anti-Corruption Rhetoric without Teeth

One of the unique functions of the Israeli Supreme Court is to conduct a “further hearing” – an additional round of adjudication of a case which is not considered an appeal but is usually held, at the Court’s permission, when all other possible proceedings have been exhausted. A recent decision rejecting leave to file a further hearing petition crisply explains when a further hearing may be held but raises questions as to the Court’s role in preventing corruption in government and administrative bodies. It revolved around the appointment of Aryeh Deri as Israel’s Minister of Interior.[1]

Deri had been involved in two affairs during a period in the mid to late 1980s, when he served in various public offices, including as Minister of Interior. In the first, Deri had been convicted of receiving a bribe, fraud, breach of trust, and fraudulently receiving a benefit with aggravating circumstances. The District Court found that the bribery offense was an offense of moral turpitude and sentenced Deri to four years’ incarceration. After an appeal and reduction for good behavior, Deri served two years and was released in July 2002. In the second affair, he was convicted for breach of trust, committed while serving as Minister of the Interior in 1989, for his involvement in diverting funds to a Jerusalem organization run by his brother. In 2003 the Jerusalem Magistrates’ Court sentenced him to a fine and three months of suspended incarceration.

Since 2013, Deri had been appointed to several offices, including as Minister of Economy, and several petitions challenging these appointments were submitted to the Court. In one such challenge, the Court found Deri’s appointment to be on the “outskirts of the range of reasonability,” but found no reason to intervene in the appointment.

And so, when the Government decided to appoint Deri to Minister of Interior in January 2016, the petition which ultimately gave rise to this motion for a further hearing was submitted. On May 8, 2016, the Court rejected the petition against Deri’s appointment as Minister of Interior. The Majority believed that the discretion granted to the Prime Minister in such appointments is extensively broad. A candidate’s criminal record is but one consideration to be taken into account and must be balanced against other. The Court rejected the argument that the office of Minister of Interior requires an elevated standard of “clean hands” compared to other Ministries, as this distinction creates a ranking of less and more important ministers which has no basis in the Israeli governance system. As to the link between the offenses and the office, the Court concluded that Deri’s offenses could have been committed in any ministry, and the fact that they took place in the Ministry of Interior had no direct and meaningful bearing on Deri’s eligibility to serve in that office. Even public trust, the Court held, does not create that direct and meaningful link, though the Court did note the difficulties involved. Ultimately the Court decided that this appointment does not exceed the broad discretion the Prime Minister holds, and, under the circumstances – despite the difficulties – there is no legal reason for intervention. The dissent believed there was a direct and clear link between the specific office and the offenses, because the offense exploited the office and because this particular office is charged with monitoring and guarding against corruption in local government. Thus, according to the dissent, Deri’s appointment to serve again as Minister of Interior was unreasonable.

The motion for a further hearing argued that the latest Deri decision establishes new precedent in terms of the actual link requirement and that the decision means that such a link exists only where the office in which the offenses were committed is “unique.” It was also argued that this case is unusual compared to others because here there is significant harm to fundamental principles of the system and to society’s perception of justice. These, according to the motion, justify a further hearing.

The Court rejected these arguments. In doing so it succinctly explains what a further hearing is and clarifies both its goals and when it may be conducted. Essentially, a further hearing is a procedure that is an exception to the rule regarding finality in adjudication. It is thus a rare procedure and not designed to effectively create another level of adjudication. Instead it may only be held when a newly decided precedent contradicts an earlier precedent, or where a new precedent is important, novel, or difficult to the extent justifying a further hearing.

Applying these rules here, the Court did not consider the Deri case to fall within the circumstances justifying a further hearing. The Court did not see the prior decision’s findings as to the link to constitute a new precedent. Rather, the decision represented an application of settled precedent and did not change the existing rules as to judicial review over appointments to public office in general and the office of minster in particular. The Court again noted that “there is no denying the appointment raises difficulties on different levels” and repeated the earlier decision in the petition itself that “this decision is not a normative seal of approval, whereby the appointment of Deri is a proper appointment or to endorse this appointment.”

These “difficulties” in the appointment to which the Court repeatedly refers, create in turn difficulties about the Court itself, and particularly its own role in guarding against corruption. Government or administrative decisions even reeking of potential for corruption threaten the Israeli system at the core. They do not resemble other administrative decisions that may be challenged because of rights infringements for example, and so they might warrant a tighter range of reasonability. Also, while the earlier appointments may have only been on the “outskirts” of reasonability, perhaps when the appointing official does not err on the side of caution and makes a questionable and hotly criticized appointment, by virtue of getting away with making that – or a very similar – appointment before, the Court ought to consider a stricter approach than a repeated slap on the wrist. Or, in the words of the South African Constitutional Court:[2]

“Corruption threatens the very existence of [a] constitutional democracy. Effective laws and institutions to combat corruption are therefore absolutely essential. It is the task of the courts – and [the highest] Court in particular – to ensure that legal mechanisms against corruption are as trustworthy and tight as possible, within the demands and parameters of [constitutional law].”