Now that Arye Deri may no longer serve as a minister, the coalition is reportedly considering an option to appoint him as alternate prime minister, with the hope that the High Court of Justice will refrain from blocking this if it is appealed.
How would this work, and what are the chances of it happening?
1. Israeli law allows the Knesset something called “constructive no confidence.” The idea is that if a Knesset votes no confidence in the government, instead of immediately going to an election, it can offer a new government, complete with a new prime minister, assigned ministers and policy guidelines. If it passes in the Knesset with at least 61 votes, the new government will take charge. For example, if the current 25th Knesset passes a constructive no-confidence vote, it will remain intact, but the 37th government will be replaced with the 38th.
2. Since 2020, Israeli law also allows for a rotational “parity” government. This is a different form of government, which includes two prime ministers – a “sitting” prime minister and an “alternate” prime minister. The ministers are split into two camps, each answerable to its prime minister. Neither prime minister can fire or hire ministers who belong to the other camp.
The camps have equal weight in general cabinet meetings and in cabinet subcommittees. The two prime ministers rotate midway through the Knesset’s tenure, and the sitting prime minister is not able to fire the alternate prime minister.
The coalition’s idea is to combine the two mechanisms listed above: Its 64-person majority could intentionally bring down the government in a “constructive no-confidence” vote and immediately replace it with a rotational parity government between Netanyahu and Deri. Netanyahu would be the sitting prime minister and Deri the alternate prime minister.
Why would the coalition do this?
Simple, right? Wrong, for three reasons.
The High Court’s precise ruling on Wednesday was that Netanyahu’s authority to fire ministers was no longer optional in Deri’s case, and Netanyahu must execute this authority and fire Deri.
The law gives the prime minister the authority to fire a minister, but not to fire an alternate prime minister. Therefore, if Deri becomes alternate prime minister, Netanyahu cannot fire him – and the High Court loses the mechanism to remove him.
That's simple, right?
Wrong, for three reasons.
1. This move is extremely complicated to carry out. Netanyahu and Deri will need to work out many details, such as how they will divide the ministers into “camps” and whether a parity government can exist without a rotation – with Netanyahu remaining prime minister throughout.
2. Politically, the move will exact a heavy price. First, the coalition agreements include a clause to cancel the option of a parity government, and Netanyahu stated this publicly a few weeks ago. Forming a parity government now would be a 180-degree reversal.
Second, the actual process is to dissolve the government, less than a month after it was formed. This does not look good at all, and the opposition will take advantage to make punishing criticism of the political meandering.
3. Most importantly, five out of the 11 judges ruled that Deri is prevented from serving as a minister for another reason: Part of what contributed to the leniency of his plea bargain last February was his pledge not to return to politics. Therefore, he cannot return to politics, these five judges ruled. If the rest of the justices cannot force Netanyahu to fire Deri, they could agree with the five and rule that Deri may not serve due to the plea bargain.
In other words, even if the coalition dissolves the government and forms a new one, an appeal against Deri may once again disqualify him, this time as alternate prime minister.
In conclusion, Deri likely can still serve as a Knesset member since no one appealed this, and because blocking someone from serving as an MK is a larger violation of the right to be elected than blocking someone from serving as a minister.
Due to the difficulties listed above, however, it is highly unlikely that the coalition will go down this road, and it may have to come to terms with the fact that the Shas leader will not be a minister.