Israel skid into constitutional limbo on Thursday as Prime Minister Benjamin Netanyahu declined for a second day to fire a top minister and key ally that Israel’s supreme court barred from holding high office.
On Wednesday, the Israeli Supreme Court ruled that Aryeh Deri, who is serving as Interior Minister and Minister of Health, was unfit to fulfill a ministerial role due to accumulated moral turpitude.
Deri “is a person who in his life has been convicted three times of offenses, and violated his duty to serve the public loyally and lawfully while serving in senior public positions,” wrote Supreme Court Chief Justice Esther Hayut, in response to a petition presented by the Movement for Quality Government in Israel. She added that Netanyahu could not ignore the “accumulation of serious corruption offenses."
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Deri, 63, leads the right-wing religious Shas party that traditionally represents Sephardic Jews. He has been a dominant actor in Israeli political life, and in legal circles, for more than thirty years. But his appointment to senior government positions had been restricted by the “Deri Law,” which in 1993 established the court’s standing to order then-Prime Minister Yitzhak Rabin to fire Deri after he was indicted on criminal corruption charges.
“If Aryeh Deri is not fired, the Israeli government is breaking the law,” former Prime Minister Yair Lapid, the opposition leader, said in a video. “A government that does not obey the law is an illegal government…If Aryeh Deri is not fired, Israel will fall into an unprecedented constitutional crisis and will no longer be a democracy and will not be a state of law.”
In the early 2000s, Deri served almost three years in jail for corruption and bribery, and was barred from public office for seven years for moral turpitude. He was most recently convicted of tax evasion in January, 2022.
“Having Deri in charge of two of the most important ministries in the government damages the image and reputation of the country's legal system and contradicts the principles of ethical conduct and lawfulness,” Hayut wrote.
The ruling, which was expected, threatens the stability of Netanyahu’s coalition government in his third week back in office after an 18-month hiatus. On Tuesday, as the anticipated decision loomed, Shas legislator Avraham Bezalel warned that "if the Supreme Court rules that Ariyeh Deri is unfit to serve as minister they're shooting themselves in the head, they know where the public stands on this.”
Netanyahu has not commented on the decision, and affected nonchalance on Thursday, meeting with U.S. National Security Adviser Jake Sullivan and calling British Prime Minister Rishi Sunak.
Deri and his followers charge that he has been the lifelong victim of judicial over-persecution due to his ethnic origins as a Sephardic Jew born in Morocco. Speaking on Israel’s national broadcaster on Wednesday after the ruling was announced, Eliad Shraga—who argued for the Movement for Quality Government in Israel, dismissed the charges outright—saying, “Aryeh Machluf Deri is a recidivist crook!”
Shas’ newspaper announced the decision with a broadsheet headline reading “THE SUPREME COURT VS THE PEOPLE OF ISRAEL.”
The court’s decision has fast-tracked a constitutional confrontation between Israel’s executive and its judiciary, which began to loom when Netanyahu announced a legislative blitz aimed at overhauling and diminishing the judiciary. The move was deemed “an all-out assault on Israel’s judicial system” and “a fatal blow to Israel’s democracy” by Hayut in a speech she delivered last week.
The proposed legislation includes a constitutional change allowing the Knesset, Israel’s parliament, to override supreme court decisions with a majority of 61 votes. But even such legislation, if rushed through, would be unlikely to have retroactive effect.
Netanyahu cannot take on Deri’s portfolios because he is, himself, on trial for bribery, fraud and breach of trust. He cannot fire Deri without risking his coalition of 64 out of 120 legislators. Shas could let Netanyahu off the hook by appointing other legislators to take over Deri’s roles, but the party is sticking by its leader. And Deri has made it clear he will not resign.
“He simply cannot be a minister,” said Professor Yaniv Roznai of Reichman University’s law school. “There is no way around this. The prime minister needs to remove him now.”
Assuming Deri is compelled to relinquish his positions, any legislation rushed through the Knesset with the aim of facilitating his return to the cabinet would face significant legal challenges.
Israeli Attorney General Gali Baharav-Miara has sent Netanyahu two letters, on Wednesday and on Thursday, informing him that Deri must “immediately” be fired. Only the prime minister has the authority to fire a minister.
Netanyahu calls his planned judicial revamp a “long-needed revision” of a judiciary that has run amok. He claims Israel’s judiciary, along with the media, form a cabal perpetrating a “judicial coup d’état” against him through the indictments, which were served in late 2019.
Critics call Netanyahu’s project an attempted power grab intended to effect “régime change” which will dismantle Israeli democracy.
Netanyahu’s office on Thursday floated the possibility of allowing Deri until Sunday to “consider his options.”
“There are no options,” Roznai said, responding to a question from The Daily Beast.
Attorney Yonatan Green, Executive Director of the conservative Israel Law and Liberty Forum, said the Deri case underscores the need for judicial reform. “We are in a very strange situation,” he told The Daily Beast, in an interview. “The government made a very senior appointment, the court does not argue that the appointment, itself, breaches the law, yet the court can tell the government whether an appointment is reasonable.”
Netanyahu formed an extremist hard-right coalition government with ultra-orthodox Jewish religious parties and with authoritarian nationalists after winning his most recent election in November. Itamar Ben Gvir, his new Minister for National Security, was previously convicted of hate crimes against Arabs and of associations with terror organizations.
Despite the victory, polls published since the government was established show that Netanyahu does not enjoy public support for upending the judiciary and only 20% of the Israeli public approves of Deri’s appointment as minister.
On Saturday, an estimated 100,000 Israelis protested against Netanyahu’s measures in Tel Aviv. Massive demonstrations are planned for this weekend in Tel Aviv, Haifa and Jerusalem.
There is no precedent under Israeli law for a prime minister refusing to comply with court rulings. The closest similar case occurred in March, 2020, when then-Knesset Speaker Yuli Edelstein, a close ally of Netanyahu, refused to hold a vote on his replacement as speaker after the supreme court ordered a vote be held. The crisis was resolved when the court deputized the longest-serving Knesset member to preside over the vote. It is unclear what the court could do if Netanyahu continues to ignore the ruling.
