Gantz to Push Law Allowing Netanyahu to Serve in Government Despite Trial

At center of coalition talks is move to sidestep High Court rulings that bar indicted ministers from serving by redefining the position of deputy prime minister

Jonathan Lis
Gur Megiddo
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Benjamin Netanyahu in a press conference in Petah Tikva, March 7, 2020.
Benjamin Netanyahu in a press conference in Petah Tikva, March 7, 2020. Credit: Moti Milrod
Jonathan Lis
Gur Megiddo

Prime Minister Benjamin Netanyahu and Benny Gantz will promote legislation next week to allow Netanyahu to serve in government despite his indictment in three corruption cases, even after he relinquishes the post of prime minister in 18 months.

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The two are currently meeting, along with Gantz's party member Gabi Ashkenazi, to discuss the terms of an agreement on a unity government.

The move is at the center of coalition negotiations for a rotating unity government in which Netanyahu will first serve as premier and will then become deputy.

The new legislation modifies the position of deputy prime minister to be similar in authority to a minister without portfolio, but also possess veto power on key appointments and the ability to serve despite criminal charges. 

During Netanyahu's turn as prime minister, Gantz will serve as deputy, and most likely also as foreign minister. A source in his party said the legislation is critical because it will enable them to "steer the government from day one."

The current law in Israel allows a criminal defendant to serve as prime minister, but disqualifies him or her from holding a ministerial post, as per a 1993 ruling that says prime ministers must fire indicted ministers. This same ruling, known as the Dery-Pinhasi precedent, is the legal basis for claims in petitions to the High Court of Justice against giving the mandate to form a government to a criminal defendant.

Avi Nissenkorn, a senior member of Gantz's party, said on Saturday that the party will not seek to overturn Dery-Pinhasi, and that the bill it will promote with Netanyahu's Likud will be tailored specifically to the premier's circumstances. Indicted lawmakers, Nissenkorn said, will not be able to act as ministers.

Avigdor Lieberman expressed he was blindsided by the news that Gantz would be joining Netanyahu, believing the move was "wrong and even ludicrous." The Yisrael Beiteinu chairman, considered until now to be the election kingmaker, said it was obvious "Netanyahu would pull [Gantz] in." Nevertheless, he did not rule out the possibility of joining their government.

At the center of the coalition negotiations between Gantz’s Hosen L’Yisrael party and Likud is a crucial question: What will Netanyahu do in October 2021, the date he promised to vacate the Prime Minister’s Office and let Gantz move in.

While many doubt that Netanyahu will keep his promise, analyses published this weekend predict that Netanyahu will ask to serve as a government minister.

Netanyahu’s trial, so long as it remains an orderly process, is not expected to end within the next year and a half. The only way Netanyahu can serve as a minister while indicted is by changing the Basic Law on the Knesset in order to explicitly nullify the so-called Dery-Pinhasi policy, which is based on two High Court rulings barring indicted ministers from serving.

This piece of legislation may also allow ministers Arye Dery (Shas) and Yaakov Litzman (United Torah Judaism) to continue serving in the government even if there is a decision to indict them. Police recommended charging Dery with fraud, breach of trust, tax-related offenses, obstruction of justice, perjury and money laundering in November 2018. In August, police recommended indicting Litzman for using his health minister post to aid an accused pedophile evade extradition, among other alleged abuses of his post.

Hosen L’Yisrael sources claimed over the weekend that Gantz would not lend a hand in the process of overturning the Dery-Pinhasi precedent.. Gantz’s spokesperson refused to officially deny that they came to an agreement on legislation cancelling the policy, and acknowledged that the topic is up for negotiation. Gantz’s team responded, “We do not discuss the details of negotiations.”

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