Yesterday an 11-justice High Court of Justice panel began a hearing to discuss the legality of Shas leader Aryeh Deri’s appointment as a government minister.

• Deri is today serving as acting prime minister while Netanyahu underwent a medical procedure and was briefly incapacitated.
• The hearing was prompted by three petitions to the court:
  • The first argued that the Deri Law is a personalised law, abusing the Knesset’s authority to legislate Basic Laws.
  • The second that Deri’s appointment as minister is ‘unreasonable’ because of his recent conviction and criminal record.
  • The third petition stated that Deri’s appointment contradicts terms of his plea bargain, whereby he would retire from public life in order to avoid the categorisation of moral turpitude.

One of the laws passed prior to the governments swearing in, made the distinction between a suspended and custodial sentence allowing Deri to serve as interior and health minister.

• Last year In a plea bargain last year, Deri confessed to tax offenses and was given a suspended sentenced on condition that he resign from the Knesset, which he did.
• In the leadup to the hearing Attorney General Gali Baharav-Miara clarified that she had no objection with the Knesset’s authority to change the basic law, but nevertheless thought it “extremely unreasonable” for Deri to serve as a minister. As such she would not defend the government in court but allowed Deri and Prime Minister Netanyahu to appoint their own legal counsel.
• Not only was Deri found guilty of tax offenses last year, twenty years ago he served a prison sentence for bribery.  After being released, he spent the requisite seven years away from public office.

Justice Stein, took issue saying, “You can’t say ‘I resign’ for the benefit of a convenient plea bargain and after a very short time say ‘I want to become minister.’”

• Deri’s lawyer said this was “a rare case of misunderstanding.”
• His lawyer argued that his appointment expressed the will of over 2 million Israeli citizens, including 400,000 Shas voters.
• President of the Supreme Court Esther Hayut retorted that they have the right to choose representatives to the Knesset, but not ministers.
• Netanyahu has argued that he values Deri’s “great wisdom and experience” and his appointment was vital for foundation of this government.

On Wednesday evening (the night before Deri’s hearing) the new Minister of Justice Yariv Levin (Likud) held a press conference.

• He outlined four significant changes he is looking to bring in.
  • An override law that would allow the Knesset to reinstate legislation annulled by the Supreme Court, by a simple majority of 61 votes.
  • To reform the committee that selects judges, giving politician more control. Levin explained, “There will no longer be a situation in which judges elect themselves in closed rooms… Instead, there will be equal representation for all three branches of government on the Judges Selection Committee. The justice minister will appoint two public representatives to the committee instead of the sectarian representatives of the Israel Bar Association, and full transparency by means of public hearings in the Knesset Constitution, Law and Justice Committee for Supreme Court candidates.”
  • Abolishing ‘reasonability’ as grounds for the court to cancel government decisions. Levin said, “There is no such thing as a grounds of reasonability. No more will the government be subordinate to an unelected echelon.”
  • Altering the role of ministerial legal advisors, allowing ministers to appoint their own advisers (like in the UK).
• Levin argued, “Confidence in the justice system has fallen to a dangerous nadir. We went to the polls, but time and time again people who we never elected made choices for us. That is not democracy. The governance reform will strengthen democracy and will restore the balance between the three branches of government. We will discuss at length and in great depth, and the opinions of all MKs from every faction will be heard, as will those held by members of the justice system.”

Leader of the Opposition Yair Lapid said, “Like a gang of criminals, a day before the High Court of Justice hearing on the Deri law, the government placed a loaded pistol on the table. What Yariv Levin presented today isn’t judicial reform; it’s a threatening letter. They are threatening to destroy the State of Israel’s entire constitutional structure. I am announcing here and now: on the day we return to power all of these changes will be abolished. The reckless reform will be abolished; the extortionist override clause will be abolished; judges won’t be elected by corrupt politicians who want to have the cases against them closed.”

• The former Justice Minister Gideon Saar said, “Minister Levin cited Menachem Begin, the legendary and first leader of the Likud, this evening at the beginning of his remarks. But his statements were nothing short of killing Begin’s democratic and regime doctrine. Without doubt, Menachem Begin would have rejected every one of the sections of this plan to change the regime in Israel. His real disciples bear the duty of fighting against that, and that is what I will do.”
• Saar’s party leader Benny Gantz suggested establishing a bipartisan committee to debate and reach a consensus on reforming the judiciary.  For example regarding the override law, a more restrained version would require a larger Knesset majority in order to overrule Supreme Court decisions.

The timing of Levin’s announcement angered Deri, who believes that under the threat of intimidation the judges could actually toughen their stance against him.

• Israel is a uniquely fragile democracy, it does not have a constitution, a second chamber or a presidential veto.
• The separation of powers is a founding principle but there is only a limited distinction between the legislative and executive branches.
• In the last 30 years there has been numerous examples of an activist Supreme Court challenging government decisions.  The court uses the precedent of the Basic Laws to overrule government decisions.
• Levin and his supporters have long argued that overruling government decisions works against the values of democracy, when the Knesset is the only elected body.
• Others have argued that these Basic Laws protect Israel from international criticism as they recognise the standing of an independent Supreme Court.
• Defenders of the reforms point to the example of the US legal system and other democracies where all judges are selected by elected officials.

Following Levin’s announcement he will be completing preparation to bring the bills to the Knesset in the next month or two.

• Netanyahu has not commented publicly on Levin’s plan it is thought that he does not necessarily agree with it all and elements could be softened.  Speaking recently on his podcast Ron Dermer, perhaps Netanyahu’s closest ally and newly minted Minister of Strategic Affairs though the reforms should be made “with a scalpel and not sledgehammer.”
• The verdict in Deri’s hearing  could still take some weeks, but will have profound repercussions for the government and its relationship with the court.

• Twenty minutes before the midnight deadline on Wednesday night, Benjamin Netanyahu informed the president he had successfully reached agreements to form a government.
• Netanyahu told Herzog, “Thanks to the massive public support we received in the recent general election, I inform you that I have successfully formed a government that will work for the benefit of all citizens of Israel,”
• Herzog replied, noting, “you have promised to work for the benefit of the entire nation of Israel; I hope all of you enlist in this mission, at this period of time. May you be successful.”
• The Likud is still in final negotiations with their right wing partners to conclude the coalition agreements, but some details have been released.

Likud – Religious Zionist Party: The agreement includes:

• Prioritising legislation on judicial reform, both regarding the ability of the court to ‘override’ Knesset laws and changes to the judicial selection committee. The agreement notes the need to restore the proper balance between the legislative branch and the judiciary.
• Eight billion shekels (£1.9bn) to be spent on a five-year plan to upgrade roads in the West Bank. This reverses the spending priorities of outgoing Transport Minister Merav Michaeli leader of the Labour Party.
• Appointing a national religious chief rabbi (until now the roles of both Sephardi and Ashkenazi chief rabbis have been Ultra-orthodox).
• Reviewing the ‘grandchild clause’ of the Law of Return. The current law allows non-Jewish grandchildren of Jews that have immigrated to Israel the full range of rights and benefits. The Likud has not fully accepted the cancellation and agreed that the law will be reviewed by a special committee.
• A new kosher supervision law, which cancels a more decentralised version introduced by the outgoing government.
• Legislating a new Basic Law: Torah Study.  This will enshrine bible study as a fundamental value recognised in law. It could then serve as precedent to justify learning instead of military service for Ultra-orthodox men.

Likud – Jewish Power:

• The incoming national security minister, Itamar Ben Gvir, will have the authority to decide the rules of engagement for the police. The commonly cited example imagines a scenario involving an Israeli soldier facing someone holding a Molotov cocktail, and asks whether it’s necessary to wait before the cocktail is thrown before shooting, or if all other measures should be taken first, with live fire only used as a last resort.
• In an unprecedented move the Shin Bet security service will expand its remit to deal with crime in Arab society.
• To repeal the law preventing someone running for Knesset being disqualified on the grounds of incitement to racism. In the past, Ben Gvir’s allies were prevented from running.
• Banning the waving or displaying of Palestinian flags in institutions funded by the state or in local authorities.
• Establishment of minimum sentences of three years in prison for agricultural crime and three years for demanding protection payments.
• Provide legal immunity for members of the security forces.
• Defining incitement against the Ultra-orthodox sector as racism.

Likud – UTJ: This agreement has more than 120 sections, some of the ‘highlights’ include:

• For the first time, UTJ will have a representative in the security cabinet, housing and construction minister designate Yitzchak Goldknopf.
• A commitment that before the 2023 budget is passed, a new military draft bill will secure the status of yeshiva students.
• The UTJ will have the right to veto all issues of religion and state.
• Funding for religious institutions will be expanded and the budgets for educational institutions in the Ultra-orthodox community be made equal to those in general education.
• A representative of the rabbinate will be a permanent member of the committee that decides on work permits during the Sabbath.
• Leading prayer services at the Western Wall will be exclusively determined by the Chief Rabbinate and the rabbi of the Western Wall. This appears to cancel recommended reforms accommodating non-orthodox Jews.
• Cancelling the outgoing government’s tax on disposable plates, cutlery items and high sugar soft drinks.
• A committee will explore recognising rabbinical ordination as equivalent to a university degree to allow more ultra-Orthodox to apply for civil service jobs. Another section, considered unprecedented, states that five years of work experience be considered equivalent to a degree.

Netanyahu now has another week to complete the task of distributing government portfolios ahead of the formal swearing in ceremony.

• The most significant remaining challenge will be the allocation of positions for Likud MKs.
• As Yediot Ahronot commentator Sima Kadmon concluded: “The one thing that is likely to be somewhat reassuring is that not everything that’s written in these agreements will be carried out. As we learned from Netanyahu, pledges are one thing and implementation is another.”

The Knesset is in the midst of a marathon session as it tries to pass four pieces of legislation in the next few days.

• There are four bills being debated in Knesset committees and being prepared for their second and third readings.
  • The first relates to the expansion of powers over the police for designated National Security minister Itamar Ben Gvir. Among the expanded powers, he wants more direct control over police operations and oversight of the police commissioner.
  • Secondly, an amendment to Basic Law: Government, to allow Shas leader Aryeh Deri to serve as minister (despite being convicted last year on tax offences). The new amendment will make a distinction between a suspended prison service (that Deri received last year) and serving prison time (that happened to Deri in the past).
  • The third change is also to the Basic Law: Government. It will move control over the Civil Administration (in the West Bank) and the Coordinator of Government Activities in the Territories from the ministry of defence to the leader of the Religious Zionist Party Bezalel Smotrich.
  • The fourth bill will repeal the clause in the Knesset law that allows four MKs to splinter off from an existing faction. This clause was changed by the previous government to try (unsuccessfully) to facilitate a split within the Likud. The repeal reverts to the previous situation that requires one-third of a party to split in order to form its own faction. 
• Netanyahu is keen for the fourth bill to pass before he allocates ministerial portfolios and other positions to his Likud colleagues, lest those unsatisfied attempt a rebellion.
• Itamar Ben-Gvir is still demanding veto power in the Knesset Constitution, Law and Justice Committee, but the Likud is opposed.
• One issue on which Ben-Gvir could back down relates to ministerial oversight of the Police regarding criminal prosecution. The current compromise suggests the minister would have the power to determine which types of cases will be investigated, but not to interfere in specific cases.
• Furthermore, this morning a moderated version of the Ben Gvir bill proposed that the minister will determine policy on investigations, including how long they will take, but only after first consulting with the police commissioner and the attorney general.
• Ben Gvir has also reportedly agreed to insert a clause that stipulates that the police commissioner is the supreme commander, (but still subordinate to the minister).
• Among other outstanding issues is Ben Gvir’s demand to give soldiers and police officers immunity for action taken during terrorist attacks.
• Ben Gvir is also seeking revision of the rules of engagement used by the IDF and the police.
• It appears Netanyahu is waiting to the very last moment to distribute ministerial portfolios and other positions to his own party colleagues. There is ongoing concern within his party that the coalition partners have already extracted too many concessions. One example is the Education Ministry, once seen as one of the most important positions. This time around it appears less appealing since various departments have been redistributed as part of the coalition deals.
• Meanwhile, some of the most controversial proposals are expected to only have a vague commitment in the coalition agreement. For example, a new military draft bill, which places the Ultra-orthodox at odds with the Likud, will only be negotiated after the new government is formed.
• Similarly, judicial reform and an ‘override clause’ are expected to only be discussed after the new government is sworn in. Bezalel Smotrich is still demanding an explicit promise to limit the authority of the judiciary. Netanyahu prefers to only make a vague commitment and wait a few months before moving forward.
• However, if the legal establishment tries to reject one of the bills currently being prepared, for example, the Deri law, this could precipitate a constitutional crisis.

Netanyahu received a ten day extension of his mandate, which formally expires at midnight Tuesday. Though technically he can ask the president for an additional four-day extension.

• Once Netanyahu formally updates the president that he has a government, the Knesset must convene a vote within seven days to swear in the new government.
• They also need to publish the coalition agreements 48 hours ahead of the vote.
• In parallel, Netanyahu hopes to have all of the planned legislation completed by the middle of next week.

Likud MK Yariv Levin is expected to be elected as the temporary speaker of the Knesset. This will finally give the incoming coalition control of the legislative process.

• On Friday President Herzog agreed to extend Netanyahu’s mandate to form a government by ten days.
• Herzog wrote to Netanyahu: “You said that you would form a government that would act on behalf of the entire public… Therefore, and in the spirit of your above-cited statements, I wish to repeat the call I issued on the day the Knesset was sworn in for the government that is formed to act on behalf of the entire Israeli public, and that the emerging coalition adhere to respectful and responsible dialogue.”
• Over the weekend, the outgoing Prime Minister Lapid’s Yesh Atid Party and the Labour Party already began protesting the incoming government at various bridges and junctions. Lapid himself attended one of the demonstrations in Tel Aviv. He told the crowd, “We are here to tell the new government that is being formed that we aren’t your suckers. We aren’t here only to pay you taxes and to send our children to the army for a government that doesn’t send its own children to the army. Avi Maoz, who hates LGBTQs and hates women, won’t educate our daughters; and Itamar Ben Gvir, a violent criminal who was convicted of supporting terrorism and didn’t serve a single day in the army, isn’t going to send our children into battle. What’s being formed now is neither a Likud government nor a right-wing government; it’s the most extreme and the most insane government in the country’s history. Netanyahu is weak, and partners who are younger than him, more determined than him and more radical than him, have defeated him unconditionally. But we aren’t going to surrender. We are here to stay.”

Context: Levin is considered one of the Likud MKs closest to incumbent Prime Minister Netanyahu. He has served as the Likud’s lead negotiator during the coalition negotiations.

• Levin will only be a temporary appointment because the Likud leadership could not agree to a permanent candidate at this stage. There are several Likud MKs vying for the position but it is dependent on the allocation of other ministerial positions that has not yet been decided.
• The election of a new speaker is an essential step to forming the next government. Once in control of parliamentary proceedings they plan to pass a series of new laws before the government can be sworn in.  These include:
  • An amendment to Basic Law: Government to allow Shas leader Deri to serve as minister (despite being convicted last year on tax offences). The new amendment will make a distinction between a suspended prison service (that Deri received last year) and serving prison time (that happened to Deri in the past).
  • An amendment that would give Ben Gvir expanded powers over the police. Ben Gvir is set to be appointed national security minister. Among the expanded powers, he is seeking to place the police’s annual budget under his discretional purview. He also wants more direct oversight over the police commissioner.
  • Legislation that would move control over the Civil Administration (in the West Bank) and the Coordinator of Government Activities in the Territories, from the ministry of defence to Smotrich in the finance ministry.
• Levin himself is considered the lead candidate to become justice minister. However, recent speculation has suggested his desire for judicial reform may be too extreme for Netanyahu.
• From the outside a relatively homogeneous right wing religious coalition should have been easier to assemble. However, Israeli media is rife with speculation over disagreements and mistrust within the Likud faction and among the future coalition partners.

The first stage today will be for the Likud parliamentary faction to elect MK Yariv Levin as their candidate to serve as temporary Knesset speaker. Once approved by the faction, Levin’s nomination will be put to a vote in the Knesset plenum.

• The new coalition then intends to pass several pieces of legislation within the next few days.
• The plan is for these bills to pass their second and third readings by next week, to then allow the new government to be announced ahead of the December 21 deadline.
• After informing the president, Netanyahu will have an additional seven days to formally swear-in the new government.

Ultra-orthodox demands: In addition to the coalition agreement on portfolios and legislation Channel 12 News revealed a slew of demands that have reportedly been agreed between Likud and United Torah Judaism (UTJ). However, according to the Likud not all these demands will be met.

• Among the issues:
  • Stopping the production of electricity on the Sabbath.
  • Adding a representative of the Chief Rabbinate to all committees that decide on government work permits on the Sabbath.
  • Adding NIS 100 million (around £24m) in Education Ministry funding for Ultra-orthodox culture.
  • Initiating affirmative action to add Ultra-orthodox candidates to the board of directors of government companies.
  • Increasing the number of gender-separated beaches, proportionate to the size of the ultra-Orthodox population.
  • Government funding for the correct disposal of damaged holy documents containing God’s name, (according to Jewish law they must not be thrown away but buried).
  • Expanding Bible and Talmud studies in secular schools.
  • Establishing a government-funded hotline that will provide answers for questions related to Jewish religious law.
  • Allowing the heads of hospitals to prohibit unleavened bread being brought into hospitals during Passover.
  • Ensuring any government service now provided via the internet will also be available by phone operators or in person.
  • A review (with a view to closing) of the Diaspora Affairs Ministry’s department that deals with Reform Judaism.
  • Cancelling the outgoing governments reforms to the ‘kosher phone’ (non-smart phone) market.

• Incoming Prime Minister Netanyahu related to the report from the Knesset plenum yesterday saying, “There is and will be electricity on Sabbath, there are and will be beaches for everyone. We will maintain the status quo, everybody will live according to their own beliefs.” He added that the state will not be governed according to Jewish Law. Insisting, “There will be a state here that will take care of all the citizens of Israel without exception. We were chosen to lead in our own way, the way of the national right and the way of the liberal right and we will do so.”
• Outgoing Prime Minister Lapid responded saying, “The UTJ-Likud agreement is a disgraceful surrender agreement….If they think we’re going to pay taxes, go to the army, bankroll people who don’t work and then for them to tell us to lead our lives, I have news for them: We won’t allow Israel to become a benighted country. Netanyahu is weak and is selling our freedom for his own freedom.”

Looking ahead: Later today the police commissioner will appear in front of a special Knesset committee and give his opinion on the proposed changes.

• The appointment of Levin as speaker is a temporary move for the next couple of weeks to facilitate the passing of those four pieces of legislation before the new government is sworn in. At the second stage a permanent speaker will be elected and Levin is expected to be the next minister of justice.
• The plan is for these bills to pass their second and third readings by next week, to then allow the new government to be announced ahead of the December 21 deadline.
• After informing the president, Netanyahu will have an additional seven days to formally swear-in the new government.

Local government, school principals and parent groups have all heavily criticised the appointment of MK Avi Maoz from the Noam Party to a position within the Prime Minister’s office with authority over external curricula content in the state-run education system.

• Maoz is best known for his long-standing opposition to the LGBTQ community and highly conservative views.
• In response to his appointment the Tel Aviv municipality declared it would continue to fund external educational content “in keeping with the spirit of this city.” Tel Aviv Mayor Ron Huldai said, “The message that has been sent from local authorities is strong and clear: We will not allow anyone to play games with the education of our children. I will make sure that in our city, we continue to educate in keeping with our values.”
• Over the weekend, dozens more mayors, including from the Likud, expressed their objections to Maoz’s appointment and announced that they would fund educational content themselves. The Likud Mayor from Bat Yam Tzvika Brot said, “No party has a monopoly on Judaism, just as no party has a monopoly on pluralism. We will not allow anyone to meddle with our policies or values and change the status quo in this city.”
• Ramat Gan Mayor Carmel Shama Hacohen, a former Likud MK, said “The city of Ramat Gan will fund two hours of class time on liberalism, inclusiveness and equality for every hour the government slashes on those topics.”
• In addition, around 200 school principals sent a letter to the designated prime minister Netanyahu. They wrote, “We, school principals from across the country, from a range of sectors will stand strong to protect our democracy and the basic rights of the citizens of this country when it comes to issues related to the Basic Law: Human Dignity and Liberty. We hereby express our opposition to the removal of the unit responsible for external content and partnerships from the Education Ministry and transferring responsibility for that unit to a department that will be headed by Avi Maoz of the Noam Party, who has openly expressed his racist, homophobic views that are very benighted and very extreme, which cancel, divide, tear apart and hurt entire communities and broad identities in Israeli society. We will not allow benighted views to dictate the agenda in our schools. We call for this decision to be changed immediately,”
• In addition, more than 660 civics teachers and educators wrote, “We will not quietly accept educational leadership that promotes, via legislation and action, anti-democratic actions that is damaging to human rights.”

Context: The Noam Party was elected as part of the Religious Zionist list, but since the election the list has splintered into its constituent parts, leaving Maoz as his own one-person faction.

• According to the agreement he reached with the Likud, Maoz will serve as a deputy minister in the Prime Minister’s Office.
• He will head the unit for external content and partnerships that was taken from the Education Ministry. The role overseas all of the curricula beyond core curricula, such as maths, English, sciences.  The unit has a budget of NIS 2 billion (around £480m).
• Privately, some in the Likud now acknowledge that this appointment was a mistake. They had thought that the unit was a small and unimportant department in the Education Ministry, and failed to realise the influence he could have.
• One theory under consideration is to hold up the transfer of authorities to Maoz, to create a crisis whereby Maoz will resign and quit the coalition. The coalition could still function with 63 instead of 64 members. However, others in the Likud have dismissed this approach.
• Another suggestion is that Netanyahu himself would oversee Maoz. Responding to this idea, outgoing prime minister Lapid wrote yesterday on Facebook: “Netanyahu said that he would ‘personally supervise’ the Gefen Unit, which is responsible for educational programmes at schools. Netanyahu knows that that’s a lie. He is saying that in the hope that the storm will blow over. Netanyahu knows that he has done something terrible—he has placed in the hands of a dangerous racist a budget of more than two billion shekels, with an open ticket to the hearts and minds of every child in Israel. Don’t let Maoz near your children. The authority is in your hands, and you can stop this.”

Looking ahead: Tomorrow the outgoing education minister, Yifat Shasha-Biton, is scheduled to convene an emergency conference. Attendees are expected to include outgoing Prime Minister Lapid, Defence Minister Benny Gantz, MKs, mayors, former education ministers, educators, parents and representatives of civil society organisations.