Case Number

HCJ 232/16

Date Decided

5-8-2016

Decision Type

Original

Document Type

Full Opinion

Abstract

This was a petition challenging the decision to appoint Knesset Member Rabbi Aryeh Machlouf Deri (hereinafter: Deri) to the office of Minister of the Interior in the Israeli Government. The petition was submitted against the background of Deri’s conviction of corruption offences, among them offenses of bribe taking and breach of trust, committed in the period during which he held several senior positions in the Ministry of the Interior at the end of the 1980s. It should be noted that pursuant to Deri’s appointment as Minister of the Economy and Minister for the Development of the Negev and the Galilee, the Petitioner challenged Deri’s appointment to any ministerial office in light of his criminal record. That petition was recently denied (HCJ 3095/15 – HCJ Deri). The current petition challenges his appointment specifically to the office of Minister of the Interior.

In a majority decision (per Justice S. Joubran, Justice Y. Danziger concurring, Justice N. Hendel dissenting), the High Court of Justice denied the petition for the following reasons:

The criminal record of a candidate for public office is undeniably a factor that the appointing authority must take into account among its considerations in deciding upon an appointment. This obligation derives from a public authority’s role as the public’s trustee. However, the Court has explained on more than one occasion that a candidate’s criminal record is only one of the considerations that an appointer must weigh in deciding upon an appointment to a public office. It has been held that in assessing the criminal record, appropriate weight must be assigned to a number of factors that must be balanced: a. the severity of the offenses ascribed to the candidate and their relationship to the office he is intended to fulfill; b. the character of the offenses; c. the duration of the offenses; d. the time that has elapsed since the commission of the offenses, and the public interest in the rehabilitation of criminals; e. the moral turpitude of the offenses; f. the candidates expression of contrition; g. the necessity of the candidate for the position. In balancing these considerations, the Court examines whether the candidate’s actions testify to a normative-value flaw in his conduct that would influence his fitness to serve in the intended office, and that would affect public confidence in the civil service. In striking the balance, each consideration must be assigned its appropriate, relative weight in accordance with the circumstances of each individual case. Assigning relative weight must be performed in a material manner, bearing in mind its underlying purpose, which is the examination of the normative fitness of the candidate for the office, and the effect of the appointment on public confidence in the governmental regime.

In HCJ Deri, the Court implemented those rules, and in balancing the relevant factors in their entirety – the severity of the Deri’s criminal record; the moral turpitude of his acts; his lack of contrition; and the time that had elapsed since the commission of the offenses – found that Deri’s appointment to the office of Minister of the Economy did not fall outside the boundaries of the margin of reasonableness. That was the case in view of the character of the appointment – the appointment of a minister in the course of forming a government by the Prime Minister and obtaining the confidence of the Knesset – which broadens the margin of reasonableness granted the Prime Minister.

The judgment in HCJ Deri, and the balance struck therein, served as the starting point for the proceedings in the current petition. The question before the Court was, therefore, whether the fact that Deri was now being appointed to the specific office of Minister of the Interior should change the result arrived at in HCJ Deri. In the opinion of Justice Joubran, in which Justice Danziger concurred, the answer was in the negative, and the appointment of Deri as Minister of the Interior – despite its inherent problems – did not deviate from the margin of reasonableness.

As had been held in the past, where there is a clear, direct relationship between a person’s criminal past and the public office for which he is a candidate, it is possible to conclude that the criminal past entirely disqualifies him from serving in the particular office. In examining whether there is a direct, material relationship, the Court must examine, inter alia, whether the public office served as a means for the perpetration of the offense, and whether there is a moral flaw that derives from the relationship between the office and the attributed offense. In the opinion of Justice Joubran, the acts attributed to Deri did not ground a direct, material relationship to the office of Minister of the Interior that would entirely disqualify Deri’s fitness to serve in that capacity. In accordance with the approach of Justice Joubran, the offenses of which Deri was convicted were not unique to the position of Minister of the Interior, and they were not committed by means of Deri’s authority as Minister of the Interior, or by means of the exploitation of that position in a manner unique to that office that would not be possible in the framework of a senior position in another ministry. The connection between the offenses of which Deri was convicted and the Ministry of the Interior primarily consisted of the fact that Deri served as Minister of the Interior and in other positions in the Ministry of the Interior at the time of the commission of the offenses.

Indeed, Deri’s appointment might be viewed by part of the public as the return of an elected official who strayed to the same position in the framework of which he abused his role as a public trustee. The appointment might also be interpreted as the granting of a Government and Knesset seal of approval that there was no flaw in the manner that Deri acted in committing the offenses while serving in senior positions in the Ministry of the Interior. That is a circumstance that must be given appropriate weight in examining Deri’s fitness to serve as Minister of the Interior, but it is not sufficient to create a clear, direct relationship between the offenses that he committed – by their character and substance – and the office of Minister of the Interior of a type that would create a moral blemish that time could not mitigate.

The Court rejected the Petitioner’s argument that the role of Minister of the Interior requires a special level of ethical conduct that entirely negates the possibility of appointing a person who has been convicted of political corruption. As a rule, in the absence of a clear, direct relationship between the offenses a person committed and the position for which he is a candidate, there are no grounds for establishing special fitness and ethical requirements for different government ministries. Moreover, there is nothing about the specific office of Minister of the Interior that, by its character and nature, would require stricter standards in regard to a candidate’s criminal record than those required for appointment to the office of minister in any other ministry.

Although the Court did not find a clear, direct relationship between Deri’s criminal past and the office of Minister of the Interior, Justice Joubran was of the opinion that Deri’s criminal record posed two unique problems. One was that the offenses were committed in that ministry, and the appointment of Deri as its head bore symbolic significance that could further harm public confidence in governmental authorities. The second was the fact that the offense of which Deri was convicted in what is referred to as the “Public File” was committed in the course of exercising his authority as Minister of the Interior. However, after examining the balance struck among the various considerations in HCJ Deri, it was held that the said problems were insufficient to move Deri’s appointment as Minister of the Interior over the boundary of the margin of reasonableness. This conclusion was primarily based upon the fact that countering these additional problems was a mitigating factor in the form of the Knesset’s ratification of Deri’s specific appointment to the office of Minister of the Interior, following a debate that addressed, inter alia, his criminal record, whereas the ratification of Deri’s appointment as Minister of the Economy was given in the framework of the Knesset’s general vote of confidence in the Government as a whole. In this regard, it was emphasized that ratification by the Knesset in the course of voting confidence in the Government – wherein the appointment of a particular minister is “subsumed” – is not the same as ratifying the specific appointment of a minister following a debate on the various aspects of the matter.

Therefore, in the opinion of Justice Joubran, with Justice Danziger concurring, under the circumstances of the case, and in view of the broad margin of discretion granted to the Prime Minister in regard to decisions related to the appointment of ministers, Deri’s appointment as Minister of the Interior remained a “borderline case” that, despite the difficulties that it raises, does not provide legal grounds for intervention. The Court emphasized that in deciding to uphold the appointment, the Court was not granting moral endorsement of the appropriateness of the appointment, or expressing its approval.

In the opinion of Justice Hendel (dissenting), the decision to appoint Deri as Minister of the Interior could not stand, inasmuch as it was unreasonable to a degree that justified the annulment of the appointment. According to the approach of Justice Hendel, there was a clear, direct relationship between the office of Minister of the Interior and the offenses committed by Deri. In addition, the appointment inflicted severe harm, particularly to the overarching values of ethical conduct, good governance, and public confidence. The three pillars of that relationship are: the nature and uniqueness of the office, the character of the offenses, and the concrete circumstances of their commission. Each of those pillars is of significant, independent weight. Each directly affects the relationship among them and reinforces it in such a manner that Deri’s appointment as Minister of the Interior could not be permitted to stand.

Keywords

Administrative Law -- Appointments, Administrative Law -- Discretion, Ethics

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