Attorney-General Menahem Mazuz officially informed Acting Prime Minister Ehud Olmert on Sunday that Shimon Peres, Dalia Itzik and Haim Ramon would not be able to run in the upcoming elections on the Kadima ticket if they were appointed to his caretaker cabinet while the 16th Knesset was still officially in office.
Mazuz also told Olmert he would continue to serve as acting prime minister until the day of the elections on March 28. From a legal point of view, this means that Mazuz still regards Prime Minister Ariel Sharon as "temporarily incapacitated." It also means Mazuz will continue to do so until 100 days have passed since the day Sharon suffered his cerebral hemorrhage, or until general elections yield a new prime minister, as long as Sharon is still alive.
In this case, a general election will be held prior to the end of the 100-day period of Sharon's "temporary incapacity."
Mazuz later issued a statement explaining the legal reasoning for this decision, but did not give a public explanation of his decision regarding Peres, Ramon and Itzik.
However, constitutional expert Dr. Suzie Navot, of the College of Administration's Faculty of Law in Rishon Lezion, explained to The Jerusalem Post that Mazuz's ruling was based on Articles 6a (a) and (b) of the Basic Law: Knesset.
Articles 6a (a) and (b) were introduced to prevent an MK from being tempted into switching factions in midstream in return for benefits such as receiving a ministerial position from the new faction or the promise of a guaranteed spot in the new faction's list for the next election.
According to Article 6a (a), if an MK "abandons" his faction without resigning from the Knesset, he may not run in the next election on the list of any party that was represented in the outgoing Knesset.
However, said Navot, to be considered to have "abandoned" one's original party, the MK must receive a reward for his act by another Knesset faction.
For example, the law states that an MK is regarded to have abandoned his faction if he votes in a no-confidence vote contrary to the way his former faction voted. However, he will not be considered to have "abandoned" the party as long as he does not receive a "reward" from the new party in exchange for that vote.
The law defines a "reward" as a "promise or commitment" by the MK's new faction regarding the future, including the promise of a guaranteed place in the party's Knesset candidate list or the promise of an appointment to any kind of position.
According to Navot, had Peres, Itzik or Ramon accepted cabinet appointments in Olmert's caretaker government, these would have been perceived as a reward for switching from the Labor Party to Kadima. In that case, in accordance with Article 6a (a), they could not have run on any list represented in the Sixteenth Knesset, including Kadima.
Since they have not accepted cabinet posts in Olmert's caretaker government, they will be free to run on the Kadima ticket on March 28, said Navot. She maintained that the law did not oblige Peres to resign from the Knesset, as he did on Sunday, to run on Kadima's list, and that there were no differences regarding the eligibility of Peres, Ramon or Itzik to run as candidates for Kadima.
In his press statement regarding Sharon, Mazuz wrote that there was a degree of unclarity regarding the concept of "permanent" incapacity referred to in the Basic Law: Government. He was addressing the question of whether it was possible to decide that Sharon was "permanently incapacitated" before the end of the 100-day period referred to in the Basic Law: Government.
Mazuz wrote that it would be too far-reaching to make such a decision because the law did not provide any procedure or medical criteria for doing so, and the implications of such an action were drastic. It would mean not only replacing the prime minister but also forcing the automatic resignation of the government and the formation of a new one or the holding of new elections.
According to Mazuz, waiting for the end of the 100 days to declare the Prime Minister "permanently incapacitated" did not require anyone making any steps not specifically stated in the law, while the 100-day "definition" was concrete and indisputable.
Although the question of Sharon's status is essentially theoretical in this case because of the pending elections, it might have had far-reaching consequences in other circumstances. For, had Mazuz decided that Sharon was permanently incapacitated now, two events would have happened in quick succession. The cabinet would have chosen an interim prime minister from Sharon's faction (presumably Olmert). Within two weeks, however, the president would have appointed an MK he considered to have the best chances of forming a new, permanent, government to form one. That MK need not necessarily be chosen from Kadima.