What happened: Fallout continues from the High Court’s decision on Wednesday, by a vote of 10-1, to bar Shas leader Aryeh Deri from serving as a minister.
- The decision affirmed that allowing Deri to serve would be both “unreasonable” and in violation of the legal principle of estoppel.
- The court did not vote to strike down the amendment itself, passed recently in the Knesset to Basic Law: Government, which intended to allow for Deri to circumvent the bar on those with a criminal conviction serving in cabinet on the grounds that his second, most recent conviction, did not involve “moral turpitude”.
- The dissenting judge, Justice Elron, made clear that he was not voting to uphold Deri’s appointment; rather that he felt advice should be sought from the chair of the Central Elections Committee.
- Shortly after the decision was announced, Prime Minister Benjamin Netanyahu drove to meet with Deri at his home. In his first statement after the announcement, Deri was defiantly promising to find a way to continue to serve: “When they close the door on us, we’ll get in through the window. When they close the window we’ll break through the ceiling, with God’s help.”
- On Thursday, Attorney General Gali Baharav-Miara wrote to Netanyahu demanding that, in light of the court’s decision, he fire Deri from his roles as Interior and Health Minister.
- Coalition members are angrily citing the court’s decision as evidence of the need for judicial reform. Shas officials are also stoking the flames of a Sephardi-Ashkenazi divide, by asserting – without evidence – that the court’s decision had sectarian motivations.
What comes next? The most likely outcome seems to be that Deri will either resign or be fired by Netanyahu. The government will then move for a future reinstatement of Deri by pressing ahead with its efforts at judicial reform, which include the removal of the grounds of reasonability as justification for the court intervening.
- Reports this morning indicate that should Netanyahu equivocate, the Movement for Quality Government is planning to file a legal petition ordering him to fire Deri immediately.
- Deri’s willingness to consider this course remains unclear, however, and he told a Sunday Shas meeting that he would not resign in the event of an adverse court decision.
- Nor would judicial reform necessarily smooth his return. The court was careful to invoke another legal reason in its ruling, alongside reasonability. Deploying the principal of estoppel, the court upbraided Deri for going back on his commitment to the magistrate’s court, as part of his plea deal in his most recent conviction, not to seek further involvement in public life.
- Five of the judges – including three recognised as the court’s most conservative – cited this principle as decisive. Court President Hayut declared that Deri’s dissimulation in this regard “reinforced the conclusion that this appointment clearly crosses the line.”
- This factor complicates Deri’s potential return, since revocation of the court’s reasonability prerogative would not be sufficient to overturn its ruling. Estoppel, meanwhile, is a foundational principle of Israel’s legal system, and attempts to remove it would be risky in the extreme.
- Some cabinet members, such as Jewish Power’s Amichai Eliyahu and United Torah Judaism’s Yisrael Eichler are calling on Netanyahu simply to ignore the court’s decision. “The High Court has no right to demand that it be obeyed — it’s a dictatorship like Putin,” Eichler said on Thursday. This is a minority view in the cabinet, however, with Likud members resigned to Netanyahu having to comply with the law as it stands before trying for reform.
- Deri’s removal, whether by resignation or sacking, would bring its own immediate complications. By default, his health and interior briefs would pass to Netanyahu. However, Netanyahu is himself under indictment in three cases and is thus also barred from holding a ministerial portfolio.
- Channel 12 reported a proposal that Deri replace Knesset Speaker Amir Ohana, who would then assume a cabinet role. The role of speaker would likely not face the same legal challenges, were Deri to be appointed, as a cabinet role. Deri, however, is said to consider the position too junior.
- Some reports have speculated that Deri might consider appointing his son Yanki to his cabinet roles in in his stead. Yanki appeared to inflame these suggestions when he tweeted “No stranger will sit in his seat.” More likely scenarios are that former Covid commissioner Moshe Bar Siman Tov and former Shas minister Ariel Attias will be appointed health and interior minister respectively.
- Some ministers have reportedly proposed a scenario whereby Deri be appointed alternate prime minister, a role which, they hope, might give him greater freedom from judicial oversight. Reports this morning suggest that this is now Deri’s preferred option.
- The role of alternate prime minister was created by the Netanyahu-Benny Gantz government in 2020 and also used by the Bennett-Lapid government. Netanyahu had pledged to scrap it, arguing that a nation must have only one leader.
- Deploying this gambit to retain Deri would be hugely complex and risky. The government would have to move for a no confidence vote in itself, before than presenting a new power-sharing government. Netanyahu is not keen for anyone to hold this position again.
- Also, since the High Court has never ruled on the question of a person with a criminal conviction serving in the still new alternate prime minister role, it is likely that opponents would file a case requesting that it do so.
- Another option said to be being mulled by Netanyahu is to strip Deri of formal ministerial position but keep him close to the decision-making process by appointing him an observer to the security cabinet and retaining him in the informal “kitchen cabinet” of close confidants to the Prime Minister. Whether this would satisfy Shas members remains to be seen. “Netanyahu knows that if Deri isn’t in the cabinet, there’s no government,” welfare minister Yaakov Margi threatened shortly before the verdict was announced.
Looking ahead: the addition of the estoppel complicates the coalition’s plan to reinstate Deri once judicial reforms are passed.
- The court’s decision is likely to further intensify the already high tensions between the coalition and the judiciary and further exacerbate the rancorous split in Israel between supporters of the coalition and its reforms and their opponents.
- More protests against the government are planned for tomorrow night, with organisers suggesting the possibility of an even larger demonstration than last Saturday’s, which saw 80,000-100,000 people attend.
