On January 18, 2023, Israel's top court ruled that Aryeh Deri, leader of the Shas party and a key ally of Prime Minister Benjamin Netanyahu, should not be allowed to serve as interior and health minister because of a February 2022 conviction for tax fraud. In compliance with the ruling, Netanyahu had to dismiss Deri at a cabinet meeting on January 22.
Soon after he breathed a sigh of relief following the formation of his new government and meeting the demands of his new partners, the ruling came to put Netanyahu in a new predicament and threatened to undermine all his efforts. The verdict can undermine his coalition deals and even lead to the disbanding of his government should the Shas Party decide to withdraw.
But suppose Netanyahu decides to circumvent the ruling to reinstate the convicted minister to his old positions or appoint him to new ones. In that case, he will put himself in an unprecedented political and even constitutional deadlock and further tighten the noose around himself and his government, both internally and internationally.
The Rationale Behind the Ruling
The Supreme Court of Israel ruled 10-1 that the appointment of Deri to government positions is against the law. Judge Yosef Elron was the sole dissenter, while President of the court Esther Hayut said, "this is a person who has been convicted three times of offences throughout his life, and he violated his duty to serve the public while serving in senior public positions."
In 1999, Deri was found guilty of taking bribes while serving as interior minister and spent 22 months in jail between 2000 and 2002. After his release, he stayed away from politics, only to come back in 2013 to lead the Shas Party. In 2016, he was appointed minister of the interior again. In the same year, he was questioned again on charges of corruption. Seven years later, in January 2022, he was convicted of tax fraud, and the prosecution decided on a 12-month suspended sentence and a 180.000 shekel fine as part of a deal with the court: he pleaded guilty to tax offences and admitted full responsibility for his actions in return for his resignation from the Knesset and political positions.
In fact, Israel has no constitution and, as an alternative, operates on a system of "Basic Laws" that regulates the relationship between authorities. According to Article 6 of the Basic Laws, a person who has been convicted of corruption and criminal offences shall not be appointed as minister. But after the November 2022 elections and his return to the ruling coalition, Deri and Netanyahu circumvented this article. Netanyahu and his partners, who won a majority of seats in the Knesset, sought to amend the law article, arguing that any person's ability to become a minister should depend on an active prison term and not a suspended sentence such as that handed to Deri. The amendment allowed Deri to return to Netanyahu's government as the interior and health minister.
In its incessant attack on Netanyahu's current government, the Israeli opposition led by Yair Lapid and Benny Gantz kept its focus on the appointment of Deri to a government position and the illegality of the amendment passed by the Knesset. The opposition even filed a petition to the high court to express their rejection of Deri's appointment.
Following the court ruling, Lapid stated, "If Aryeh Deri isn't fired… Israel will be thrust into an unprecedented constitutional crisis and will no longer be a democracy." For her part, Chief Justice Esther Hayut stated that having Deri in charge of two of the most critical ministries in the government "damages the image and reputation of the country's legal system and contradicts the principles of ethical conduct and lawfulness.
In a brief message to the Prime Minister on January 19, 2023, Attorney General Gali Baharav-Miara ordered Netanyahu to act according to the ruling. She said that Knesset member Deri could no longer serve as a minister in the government of Israel, telling Netanyahu, "you are required to act according to the ruling and remove him from his post in the government".
In response, Shas Party released a statement accusing the supreme court of making a "political" decision that undermined the will of Shas's 400,000 voters. Deri said he would not give up his position, asserting, "If they close the door on us, we will enter through the window. They close the window on us; we will break through the ceiling."
Heritage Minister Amihai Eliyahu of the far-right Otzma Yehudit party urged Netanhay "not to accede to the High Court's ruling," calling it "an unlawful decision." Eliyahu says the decision "is irresponsible and affected by narrow political interests."
Reactions to the high court's ruling against Deri have the following significant implications:
1. The Far-right plans to defend Deri's continuation in the government:
It plans to defy the Supreme Court's ruling by circumvention and even to confront Netanyahu himself and blackmail him using the Shas Party's participation in the government as a pressure card, which can further deepen the current crisis.
2. The public backs the court's decision:
A poll conducted by Channel 12 revealed that 65% of Israelis opposed Deri's appointment as a minister, versus 22% who were in favour, while the remaining 13% were undecided.
Among supporters of Netanyahu's bloc, 43% said it was inappropriate for Deri to serve as a minister, while 42% said it was.
3. The court ruling can potentially gain momentum amid growing demonstrations against Netanyahu's government:
This broke out earlier this month, bringing together some 80,000 Israelis. New York Times columnist Thomas Friedman noted that the Netanyahu government does not have genuine popular support and won the election by the tiniest sliver of votes (roughly 30,000 out of some 4.7 million).
4. The Supreme Court prepares for new rounds in the fight against the Netanyahu government:
After it sought to undermine the court's powers and control its decisions and appoint its judges, the court might decide to undermine any remaining legislation passed by the Knesset in December 2022,which enabled National Security Minister Itamar Ben-Gvir more control over Israeli police. This will also allow ultranationalist Bezalel Smotrich to enter the ministry of defence to take up the post of second minister.
Following the high court's ruling against Deri, Minister of Welfare and Social Affairs Ya'akov Margi (Shas) warned that if Aryeh Deri is disqualified from serving as a minister, Netanyahu knows that "there is no government." Yet, Netanyahu, on January 22, had to comply with the court ruling and remove Deri. He said to Deri: "I am compelled, with a heavy heart, with great sorrow and with the worst possible feeling, to remove you from your position as a minister in the government." Netanyahu said that he intends to seek any legal way for Deri to continue contributing to the State of Israel.
The court ruling turned into a time bomb laying on Netanyahu's desktop, threatening the government's disbanding if he failed to deal with the consequences of the verdict.
Most likely, Netanyahu has three options after implementing the supreme court's ruling.
1. Accelerating the ratification of laws on judicial reforms:
The reforms put forward by Minister of Justice Yariv Levin give the executive branch of the government led by Netanyahu sweeping powers in the face of the Supreme Court and even the whole judicial system. The proposed laws can prevent the Supreme Court from interfering in the government's decisions if approved. But it remains to be seen whether these laws can be implemented retrospectively to return Deri to his positions.
2. Circumventing the Court Ruling:
That would be through appointing Health Ministry Director-General Moshe Bar Siman-Tov as health minister, Aryeh's son Yanki as interior minister and Deri himself as alternate prime minister, a position that will require some legal amendments but will not violate the court ruling. But to pass these amendments, the government will have to resign and be sworn in again at the Knesset, which is not an easy procedure.
3. Deepening rift between Netanyahu and his power partners:
That will be the case if Netanyahu fails to find an exit that is satisfactory for Shas and its leader Deri, mainly because the latter has insisted on taking up these ministerial positions since the talks within the coalition kicked off regardless of legal prohibitions. Because Shas has 11 seats in the Knesset, its withdrawal will mean the government will collapse and even Netanyahu's exit from his position as head of the cabinet.
Regardless of Netanyahu's ability to overcome the crisis caused by removing Deri from the government, which can further escalate and lead to the disbanding of the government, the political crisis is likely to exacerbate at the institutional level and between the government and the judiciary amid the public's and opposition's support for the judicial system's rulings. What is certain is that there will be fresh rounds in the conflict between the government and the judiciary that will render Netanyahu's government unable to make any strategic decisions, at least in the coming few months.