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.

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.”