Prime Minister Binyamin Netanyahu cannot hold on to the several ministries he currently holds unless the law is amended, Justice Hanan Melcer told the state on Tuesday.
The statement, which was not a final decision and had no immediate legal consequences, was made at a hearing on petitions filed to the High Court of Justice by Yesh Atid to declare two special arrangements in the current government unconstitutional.
In the current government, Ya’acov Litzman of United Torah Judaism’s is deputy health minister, but functions essentially as the health minister based on an arrangement with Netanyahu that formally the prime minister has the title of health minister, but informally Litzman will run the ministry.
The arrangement has occurred before and is generally understood as empowering UTJ MKs to serve as ministers while not having the official title, so as to satisfy religious objections they have to being formally part of a secular, Zionist government.
Yesh Atid said this arrangement is unconstitutional and that Litzman must either be a full minister or give up the powers of a minister to someone else and function as a more typical deputy minister, who is much less powerful.
In a related petition to the High Court, Yesh Atid said that, due to certain changes to the law, the government cannot have ministers-without- portfolio, though previous governments have had them.
The state not only needs to explain why Litzman can remain as a deputy minister with the powers of a minister, but also how Netanyahu can hold on to the Health Ministry or any other ministry – including crucially the Foreign Ministry – as part of such an arrangement, Melcer said.
Netanyahu, besides heading the government and being health minister, holds the Foreign Affairs, Communications, and Regional Cooperation portfolios.
Despite the shock created by Melcer’s statement, the chances of Netanyahu having to give up any ministries or Litzman being forced out of the Health Ministry are low, law professor Yedidia Stern of Bar-Ilan University said.
But the issue may require technical legal action by the coalition to amend the law in the very near future to permit its current arrangements to continue.
The state will have some time, as the court asked Yesh Atid to amend its petition to reflect the larger issue of Netanyahu holding ministries and not merely the issue of Litzman being a deputy minister.
Melcer said that Justice Elyakim Rubinstein had agreed with him in a recent previous opinion where Melcer suggested there could be a problem under the current law with Netanyahu holding ministries.
Rubinstein was also on the five-justice panel on Tuesday, along with Supreme Court President Miriam Naor, Justice Salim Joubran and Justice Neal Hendel.
More specifically, Melcer said, “In the old government law there was a provision which said that the prime minister could be” a deputy minister or minister, but in the revised government law passed by the last Knesset “this provision was deleted.”
Therefore, he said, “In the current arrangements there is a blemish in the very idea that he [Netanyahu] is a minister.”
Noting further problems, Melcer said that another provision mentions that in exceptional cases the prime minister could be a minister, seemingly on a temporary and filling-in basis, but does not explain the circumstances, such as if a minister suddenly dies or is fired – as in the last government.
Lecturing the state for seemingly missing the issue, regarding “the current government law, you could have changed this, you made changes to the government and Knesset [laws]... but you did not make this change.”
Stern agreed that the implication appeared to be that the state could still cure the technical error if it took a vote on the issue before the High Court needs to rule on it.
However, according to Hebrew University law professor Barak Medina, Melcer and Rubinstein’s view on the issue was part of an unbinding statement they made in a parallel 2009 case in which their view was rejected by then-Supreme Court president Dorit Beinisch, and no final decision was made.
Medina said that it was possible that the Knesset may not need to amend the law, as other justices might interpret the issue in dispute differently and reject Melcer and Rubinstein’s view, though no justices said so at the hearing.
This was especially true since there had been no big public debate on the issue, Medina said.
Prime ministers have held additional ministries since the days when the first prime minister, David Ben-Gurion, also held the Defense portfolio.
Even if the state cures the newly raised issue with Netanyahu holding ministries, it will still need to defend on the issue of Litzman being a deputy minister with ministerial authority, with multiple justices demanding to know what the state would say if asked by a random citizen who is responsible for health in the country.
They implied that the current arrangement where the answer is both Netanyahu and Litzman could be problematic, but did not rule on the issue once the even bigger issue of Netanyahu being a minister was raised.