Coalition will likely need to change law in order to make Shas' Deri a minister

Complicating the picture is Deri’s conviction for bribery in 2000 for which he served around two years in jail.

 Shas party head Aryeh Deri speaks to supporters as the results of the Israeli elections are announced, in Jerusalem. November 1, 2022.  (photo credit: YOSSI ZAMIR/FLASH90)
Shas party head Aryeh Deri speaks to supporters as the results of the Israeli elections are announced, in Jerusalem. November 1, 2022.
(photo credit: YOSSI ZAMIR/FLASH90)

Attorney-General Gali Baharav-Miara has told incoming prime minister Benjamin Netanyahu that he would need approval from Central Elections Chairman Yitzhak Amit to appoint Shas party leader Arye Deri as a minister due to his conviction and suspended jail sentence this past January.

First reported by Channel 12, the Jerusalem Post has also confirmed the broad outlines of Baharav-Miara’s stances on the issue.

Leading into a January plea bargain conviction for minor tax offenses, Deri resigned from the previous Knesset, leaving the question open as to whether his conviction carried a finding of moral turpitude which would block him from serving as a minister in the future.

At the time, Deri’s hope was that a new government led by Netanyahu would eventually be elected and pass legislation altering the law so that he could return to serve as a minister.

Netanyahu and Deri's plans

 BENJAMIN NETANYAHU and Arye Deri – expected to soon become coalition partners – shake hands in the Knesset on Tuesday as current cabinet ministers Benny Gantz, Avigdor Liberman and Merav Michaeli look on. The new government will confiscate more Palestinian land, says the writer (credit: OLIVIER FITOUSSI/FLASH90) BENJAMIN NETANYAHU and Arye Deri – expected to soon become coalition partners – shake hands in the Knesset on Tuesday as current cabinet ministers Benny Gantz, Avigdor Liberman and Merav Michaeli look on. The new government will confiscate more Palestinian land, says the writer (credit: OLIVIER FITOUSSI/FLASH90)

Baharav-Miara’s opinion can slow down Deri and Netanyahu’s plans, but the duo have multiple potential plans to circumvent her and any other legal authority who might get in their way.

First, they will make an effort to convince Amit that Deri’s conviction should not carry a finding of moral turpitude and that he should be able to serve as a minister.

Complicating the picture is Deri’s conviction for bribery in 2000 for which he served around two years in jail.

Article 6 of the Basic Law: The Government states that “a minister convicted of an offense who has been sentenced to imprisonment, and on the day of his appointment seven years have not gone by since he ended serving the punishment of imprisonment, or from the day that the sentence was delivered, whichever is later, shall not be appointed as minister.”

The argument to Amit will be that nothing explicit in the above article defines a “suspended sentence” as a jail sentence, such that he does not need to decide the moral turpitude issue, or alternatively that there should be no finding of moral turpitude.

However, the Post has been told by top legal establishment officials that there is near universal agreement that Deri’s January conviction and sentence prevent him from serving as a minister under the existing laws.

This is where other efforts by the incoming government come into the picture.

Shas MK Moshe Arbel submitted a bill to the Knesset on Thursday that would amend the above Basic Law to explicitly drop a “suspended sentence” from the definition of being “sentenced to imprisonment,” such that only an actual jail sentence would count.

The incoming government will argue that it is inconsistent to let people like Deri be elected to the Knesset with a suspended sentence, but to not allow them to serve as a minister.

In contrast, Amit is expected to ask Baharav-Miara her view on this issue and she is expected to state that ministers have higher levels of responsibility, such that it makes sense to maintain a stricter standard for them.

Ministers must resign upon indictment 

The High Court of Justice for decades has held that ministers must resign upon indictment whereas Knesset MKs may remain in office.

If Amit rules against Deri, the issue is expected to go to the High Court of Justice.

If the High Court rules against Deri, the Shas leader has threatened to have the incoming government pass a game-changing new Basic Law allowing the Knesset to veto such High Court vetoes.

In the scenario where the Knesset passed such a Basic Law, it could then override the High Court to allow Deri to become a minister.

However, the court could potentially decide to cancel such a Basic Law, setting up a constitutional crisis.

It is also possible that the incoming government may pass the said potential Basic Law earlier on in the process to try to convince the High Court not to rule on the issue in the first place or to rule in favor of Deri.

According to a Channel 12 poll showed on Friday night, 71% of Israelis do not think that Deri is fit to serve as finance minister and 56% think that neither he nor Religious Zionist Party leader MK Bezalel Smotrich are suitable to serve as defense minister.