hospital bed 88.
(photo credit: )
For the third time since Prime Minister Ariel Sharon decided to disperse the Knesset and hold new elections, a lacuna or constitutional contradiction has been discovered in the Basic Law: Government.
The first was when Sharon asked President Moshe Katsav to disperse the Knesset in accordance with Article 29 (a) of the law. Immediately afterwards, the Knesset passed its own law dispersing the Knesset. The Basic Law: Government did not make clear which of the two procedures took precedence.
Then, two weeks ago, when Sharon suffered his first stroke, it was unclear whether his prerogatives should have been transferred to his deputy, Ehud Olmert, and, if so, according to what procedure. Experts discovered that there was a lacuna in Article 16 (b) of the law regarding who should determine if and when the prime minister was temporarily incapacitated and how the transfer of his prerogatives should be carried out.
Now, once again, problems have been discovered in the law, and they are likely to emerge in the coming days.
But they have not emerged yet. At this moment, the legal situation is perfectly clear, according to Suzie Navot, senior lecturer in constitutional law in the Public Law Division of the Academic College of Management in Rishon Lezion.
Navot explained that Sharon was currently in a situation of "temporary incapacity."
In such a situation, Article 16 (b) applies. The law states that "should the prime minister be temporarily unable to discharge his duties, his place will be filled by the acting prime minister. After the passage of 100 days during which the prime minister has not resumed his duties, he will be deemed permanently unable to do so."
In a written statement to the press on Thursday morning, Attorney-General Menahem Mazuz confirmed that this was indeed the state of affairs.
"Last night," he wrote, "after the prime minister arrived at the hospital and we received information on his medical condition, the attorney-general and the cabinet secretary, in consultation with the deputy prime minister, agreed that we are facing a situation of 'temporary incapacity' according to Article 16 (b) of the Basic Law: Government. Therefore, Ehud Olmert will serve as the acting prime minister."
If this state of affairs continues until election day on March 28 - which is less than the 100 days allotted to the acting prime minister by law - Olmert and the current government will continue in office and the presidential order calling for elections on that day will remain intact.
THE PROBLEM is that the current situation may not last long. There is a possibility that Sharon's doctors will declare in the next few days, or even hours, that he is permanently incapacitated, or, sadder still, dead.
The law does not specifically refer to the possibility that the prime minister could become permanently incapacitated before the end of the 100 days allotted to his deputy. In other words, it does not countenance that the prime minister might be alive but permanently incapacitated before the end of the 100 days. And just as the law does not specify who is to determine when the prime minister is temporarily incapacitated, it does not specify who is to determine (before the end of the 100 days) when he is permanently incapacitated. This is a lacuna in the law.
Nevertheless, in his statement to the press, Mazuz made clear that there was indeed a possibility that Sharon would be declared permanently incapacitated before the end of the 100 days.
"At this moment," he wrote, "we are involved in a state of 'temporary incapacity.' Only after we receive a clear medical estimate regarding Sharon's medical condition and the impact of the events he has undergone, will there be any reason to decide whether the government should appoint an acting prime minister according to Article 30 (c) of the Basic Law."
Article 30 (c) of the Basic Law: Government states that "if the prime minister has died, or is permanently incapacitated from carrying out his dutiesâ€¦the government shall designate another of the ministers who is a member of the Knesset and of the prime minister's faction, to be interim prime minister, pending the constitution of the new government."
In other words, unlike the state of temporary incapacity, in a situation in which the prime minister is permanently incapacitated or dies, the deputy prime minister does not automatically take over his powers and prerogatives. It is the cabinet that chooses the prime minister's temporary replacement, and he is entitled "interim" prime minister to distinguish his position from that of the "acting" prime minister in the case of the prime minister's temporary incapacitation. It is important to note that the interim prime minister must belong to the prime minister's Knesset faction.
Under ordinary circumstances, the interim prime minister holds office until a member of Knesset, who has been chosen by the president, is able to form a new government. According to Article 7 (a) of the Basic Law: Government, "When a new government has to be constituted, the president of the state shall, after consultation with representatives of party groups in the Knesset, assign the task of forming a government to a Knesset member who has notified him that he is prepared to accept the taskâ€¦In the case of the death of the prime minister, the president shall do so within 14 days."
Thus, the law obliges Katsav within 14 days - and after consulting with all the Knesset factions - to ask the MK who seems the most likely to be able to form a new government to try to do so. The candidate may come from any faction, and not just from the currently ruling party, Kadima.
Article 8 of the law gives the candidate 42 days to form a new government.
But the current situation is not a normal one, because the president has already ordered new elections to be held on March 28. According to Navot, were Katsav to ask an MK to form a new government and were he to succeed in doing so, the new government could rule until November, that is, until the end of the full term of the 16th Knesset. She said the Basic Law: Government does not make it clear whether the presidential order or Article 7 takes precedence.
In his statement on Thursday, however, Mazuz indicated that Article 7 will not be activated. Should the necessity arise, he wrote, the cabinet will choose an interim prime minister who will serve "until the establishment of a new government after the elections."
Thus, it seems that President Katsav will not ask an MK to form a new government, and the government under the leadership of whomever is chosen as interim prime minister will continue to rule until the March 28 elections.