Days before coalition is to take power, law clears path for ministers Deri, Smotrich
Ahead of Thursday’s planned swear-in, Netanyahu and allies pass their 2nd politically required law – giving Smotrich a post in Defense Ministry, removing obstacles to Deri’s return
Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel
The incoming coalition passed its second law early Tuesday morning, changing the quasi-constitutional Basic Law undergirding the government to smooth the path for two party leaders’ ministerial appointments.
Religious Zionism’s Bezalel Smotrich and Shas’s Aryeh Deri demanded the legislation in advance of swearing in the government of incoming prime minister Benjamin Netanyahu, now planned for Thursday.
Members of the current government, who are heading into the opposition, led an all-night filibuster during which they railed against the proposed legislation.
Passing 63 to 55 on its final vote, the law is the second one to be finalized in a three-part legislative blitz, following last week’s passage of a Likud-backed law to make it harder for rebel lawmakers to break away from their Knesset factions.
A third bill, demanded by Otzma Yehudit chief Itamar Ben Gvir, is set to expand political authority over Israel’s police leadership and policy, and is expected to come for its final votes as early as Tuesday afternoon.
Although combined into a single bill to change Israel’s Basic Law: The Government, the now-finalized amendment tackles two separate issues regarding incoming ministers Smotrich and Deri.
First, it makes it possible for Smotrich to be appointed as an independent minister within the Defense Ministry responsible for overseeing Israeli and Palestinian building in the West Bank’s Area C, an area under full Israeli civil and military control that is home to nearly 500,000 Israeli settlers and over 300,000 Palestinians.
While additional ministers have been appointed to ministries in the past, they have generally required a specific, temporary law to create their position, accompanied when necessary by government directives laying out their responsibilities.
For example, from 2020 to 2021 Michael Biton served as a minister in the Defense Ministry under his party leader, current Defense Minister Benny Gantz. Biton was in charge of civil and social affairs and had his responsibilities clearly delineated in a government order.
The Smotrich provision, for the first time, creates a permanent appointment mechanism, and does so without an accompanying government directive, as it is preceding the government’s formation.
Smotrich will also serve under presumed incoming defense minister Yoav Gallant, from Likud. And his responsibilities, loosely carved out by an annex to Religious Zionism’s coalition deal with Likud, touch military appointments and sensitive West Bank building, and thus intersect with the defense establishment’s operational capabilities.
A staunch settlement supporter, Smotrich has pressed to extend Israeli sovereignty over the West Bank, in line with religious and security ideology centered on maintaining Jewish control over Biblical Israel.
In addition to his presumed placement as an independent settler minister in the Defense Ministry, Smotrich is slated to become finance minister, which he is expected to hand over to Deri in a rotation halfway through the government’s term.
Deri in January received a suspended sentence for tax offenses. As part of a deal made with the court, the Shas leader quit the Knesset before sentencing to avoid a court decision on whether his offenses carried moral turpitude, a distinction that would have barred him from politics for seven years.
At the time of sentencing, Hebrew media reported that Deri and the court had the understanding that the issue of moral turpitude would be revisited if he aspired to once again hold senior public office.
However, the legal change made on Tuesday obviated that requirement by changing ministerial fitness standards. The amendment changes the Basic Law to only explicitly demand a moral turpitude determination for custodial prison sentences.
Had the “custodial” addition not been made, Deri’s case would have been referred to the Central Elections Committee for a moral turpitude determination, in line with the original reading of the Basic Law and an opinion from the attorney general on the matter.
Instead, Deri is promised to simultaneously hold the interior and health ministries, before replacing Smotrich as finance minister.
Critics of the change, including the Knesset’s legal adviser, attacked this law as “personal” and inappropriately legislated specifically for Deri.
The explanatory notes for the law state “the right to elect and be elected is a fundamental right in our constitutional regime. This right is also reflected in the appointment of a member of the government and the confirmation of his appointment by a majority vote in the Knesset plenum” to bring about “the will of the people and the choice of the public in the best way.”
It is “not appropriate to prevent” the public’s choice of a nominee who has a suspended sentence just “due to ambiguity in the wording of the law,” it argues.
Responding on behalf of the outgoing government, Justice Minister Gideon Sa’ar challenged the validity of the bill, declaring it was clearly a bill solely intended to allow Deri to serve as minister despite his criminal wrongdoing.
He asked the plenum whether it was appropriate for the Knesset “to lower the bar regarding membership in the government.”
Sa’ar highlighted that legal opinions given to the government and the Knesset committee that had prepared the bill had advised that it only come into effect from the next parliament, and not immediately, but this “fell on deaf ears.”
“The law is a bad law, a bad law that was extorted from the prime minister and damages the value of purity of public service, for personal reasons,” Sa’ar said.
Outgoing Defense Minister Benny Gantz attacked the installation of an additional minister within the Defense Ministry, claiming that Netanyahu had assured IDF Chief of Staff Aviv Kohavi that no such move would be made before professional opinions were heard, “but here we are this morning, going to vote on the changes.”
“Let them not happen before the professional position is heard,” he urged.
Gantz warned “blood could be shed” as a result of the disruption to the chain of command that the bill brings.
“It’s a shame that we are not paying attention to this. It’s even more of a shame that we will pay this price,” he said.
The Movement for Quality Government in Israel on Sunday petitioned the High Court of Justice to block Deri’s ministerial appointments, on the grounds that Deri misled the court about his intention to leave political life when striking his plea deal earlier this year.
On Monday, the court ruled that the petition was “premature” and that it would not block Deri from taking up his government posts on Thursday.
