Court clears way for Knesset to vote on expanding cabinet

The High Court of Justice rejected on Monday a petition to freeze Prime Minister Benjamin Netanyahu’s planned expansion of the cabinet.

The ruling is a blow to the Yesh Atid party, which petitioned the court on Sunday to issue a staying order against legislation pushed by Netanyahu that would allow the cabinet to grow from its current size of 19 members including the prime minister.

Justice Daphne Barak-Erez rejected the request for a staying order, but did not rule on the substance of Yesh Atid’s complaint about the legislation. The court is expected to issue a final ruling on whether it will intervene in the proposed legislation at the end of the week.

Meanwhile, the court’s decision not to freeze the legislation means the new coalition will vote in the coming days on a bill delaying the implementation of a new constitutional amendment limiting the size of the cabinet for the duration of the current Knesset.

While Netanyahu has said he seeks to expand the cabinet by two ministers and four additional deputies, the bill being presented to the Knesset simply removes the size barrier, effectively allowing for a cabinet of unlimited size.

The bill was green-lighted on Sunday by the outgoing 33rd government — which remains in office until the swearing-in of the new cabinet, which was originally slated for Wednesday.

Yesh Atid Knesset faction chair MK Ofer Shelach petitioned the court on Sunday to issue an interim injunction to stop the Knesset from being able to vote on the measure.

The bill under consideration would delay the implementation of a major 2014 government reform bill which amended the constitutional Basic Law: The Government, limiting the cabinet to 19 members, including the prime minister, plus four deputy ministers, and outlawing the institution of ministers-without-portfolio.

The Knesset challenged the Yesh Atid appeal in its response to the court, calling it “baseless” and “irregular.” Knesset legal adviser Eyal Yinon asked the court “to reject the request both procedurally and substantively.”

It was “unprecedented,” Yinon wrote, “to try to preemptively delay the legislative process even before a bill has been brought to the Knesset or been debated by any Knesset body.” The appeal “does not prove its claim that such an irregular and unprecedented staying order by the court is justified.”

The Knesset also asked the court to render its decision promptly in order to enable the legislation to move forward and allow the 34th government to be formally established.

The High Court decision was brief, noting only that “the requested staying order was aimed primarily at a legislative process currently underway” — a mention that suggested Justice Barak-Erez accepted Yinon’s argument.

Yesh Atid chairman Yair Lapid had earlier slammed the move to cancel the cabinet size limitation, which he helped push into law in his last term in the cabinet.

“The government of Israel made a decision today which I can only describe as shameful; to increase the size of the government and to bring back the ministers without portfolio,” Lapid said in a Sunday evening statement.

“It was a decision to take money that was due for welfare, healthcare and education and to waste it on political jobs. This isn’t a few million shekels…. Every unnecessary minister creates hundreds of millions of shekels of activity around them…. We’ll fight it in the Knesset, we’ll fight it in the courts and we’ll fight it in the streets because it is a violation of the principles of democracy in which the government works for the people, not the people who create jobs for the government.”

Yesh Atid’s legal challenge is one reason Netanyahu decided on Monday to apparently delay the swearing-in of the new government until next week, giving him time to apportion ministries within his own party and push through the cabinet expansion bill against a vociferous opposition.

Yesh Atid’s challenge is not the only hurdle the bill faces. The center-left Zionist Union’s Knesset faction chair MK Eitan Cabel sent a letter Sunday from Zionist Union’s Ramat Gan law firm, Marienberg Baron, to Netanyahu and Knesset Speaker Yuli Edelstein warning that the party could resort to legal action against the expansion of the cabinet.

The Zionist Union outlined a legal case similar to Yesh Atid’s: The original Basic Law amendment stipulates that the cabinet size limitation could be overcome with the approval of 70 MKs. But since the new coalition, with its razor-thin 61-59 majority, cannot find the necessary votes in the current Knesset, the coalition is resorting to simply delaying the date in which the Basic Law goes into effect — a vote that requires just 61 votes.

In its explanatory preface to the bill, the coalition said the measure was necessary “because of the political constraints involved in forming the 34th government…[and] the need to give the agreed-upon representation to the coalition partners in order to create a stable government.”

The coalition is not defending the bill on principle, Zionist Union noted, but openly acknowledges it is a function of momentary political need.

“With all due respect, that explanation will be valid any time a government is formed under the Israeli electoral system,” Zionist Union’s lawyers write, “and so the [coalition’s proposed] amendment will in effect render the [cabinet size limits in the] Basic Law meaningless.”

Therefore, “any attempt to bring to the Knesset for approval a larger government” without obtaining 70 votes as stipulated in the Basic Law “is illegal, and my client will pursue all means available to him under law to prevent this illegal situation, including appeals to the courts.”