It is time for Israel to pass a “25th Amendment.” The law should at the very least require the prime minister to have an official replacement at all times.
By DOV LIPMANPrime Minister Benjamin Netanyahu addresses a memorial ceremony at Mount Hertzl in Jerusalem for Israel's fallen in the Second Lebanon War, July 19, 2016(photo credit: MARC ISRAEL SELLEM)
Israel prides itself on being a thriving democracy, as it should, with prime ministers and governments elected in fair and democratic elections. However, there is a flaw in our system which could endanger the smooth transition of power which Israel has enjoyed for 68 years.The United States has spent over 200 years clarifying precisely what happens when a president becomes incapacitated. It started with Article Two, Section One, Clause Six of the Constitution, and was followed by clarifications and changes via the Presidential Succession Acts of 1792, 1886, and 1947.While it appeared that the United States had made clear from the beginning what precisely should happen if a president can no longer serve, many questions remained such as: does the vice president become acting president, or is he the actual president? There was also a lack of clarity on how to determine when a president is incapacitated, the primary example taking place when president Woodrow Wilson had a stroke in 1919.Moreover, there was no procedure for the appointment of a new vice president when a vice president became president, which led to four years of no vice president following the death of President Roosevelt.And finally, there were no rules in place on what to do when a vice president dies or becomes incapacitated, an issue that resulted in much confusion when seven vice presidents passed away while in office.All of these factors were addressed in the 25th Amendment to the constitution, which both houses of Congress passed in 1965.The incentive for clarity on the succession of power was the assassination of president John Kennedy. The new president, Lyndon Johnson, had once suffered a heart attack; and the next two people in line of succession – House speaker John W. McCormack and president pro tempore of the Senate Carl Hayden – were 71 and 86, respectively, and this had legislators worried during the intensified Cold War period. So the 25th amendment clarified everything regarding the transfer of authority when a president and vice president can no longer carry out their responsibilities.All of the above demonstrates the arduous process which the United States went through in order to insure a clear and seamless succession of power. These amendments were necessary so that the country was never at risk of having a void in power, and the potential trouble that such a vacuum and lack of clarity could cause.And what is the situation regarding succession in Israel? Chaos.The prime minister is not required to appoint a replacement in waiting. Prime ministers may appoint a “memalei makom” – an “official replacement” – from among his ministers who is also a Knesset member, who then upon appointment automatically becomes a member of the security cabinet.The law dictates that if the prime minister leaves the country, then the “official replacement” may call and run government meetings.If a prime minister is temporarily not capable of carrying out his responsibilities, then the “official replacement” takes over in his place. If this situation continues for 100 consecutive days, then the prime minister will be considered as permanently incapable of carrying out his position.Israeli law states that if a prime minister becomes permanently incapacitated, then the government automatically collapses.The standing government then serves as a transitional government, and the government appoints an “acting prime minister” for that period. (Even if the prime minister had appointed an official replacement, that person is given no priority when determining who will serve as “acting prime minister” for the transitional government.) Here too, the “acting prime minister” must be a minister and also a member of Knesset.In addition, he must be a member of the prime minister’s Knesset faction.The acting prime minister may attempt to form a new government, as Shimon Peres was able to do following the assassination of prime minister Rabin. If that task proves impossible, the country goes to a new election, as happened in 2008 when Ehud Olmert resigned as prime minister and acting prime minister Tzipi Livni could not form a new government.Given the state of politics in Israel today – with numerous parties and very little consensus – and given the serious security threats we face from Hamas in the South, Hezbollah in the North, and Iran on the horizon, the possibility that we could face a situation where the government has to decide on an acting prime minister because there is no automatic replacement for the prime minister is extremely dangerous, and a serious threat to Israel’s security.It is time, therefore, for Israel to pass a “25th Amendment.” The law should at the very least require the prime minister to have an official replacement at all times, and in my opinion, should also require the prime minister to present that replacement at the time of coalition negotiations and Knesset approval.It should be clear to all who enter the coalition who that replacement is, so that the government would continue automatically upon the prime minister becoming incapacitated – that person would take over as official prime minister, and the next person on that party’s list would replace the prime minister in the Knesset. A simple and smooth transition.In addition, the law should make clear which ministers take over in case both the prime minister and the official replacement become incapacitated, perhaps by positions in the cabinet – minister of defense, minister of foreign affairs, etc. – similar to the rules in place in the United States.This action will stabilize, in law, the functioning of the Israeli government, preparing it for all scenarios – including the most tragic.May we never be in need of these laws, but may we also have the foresight to prepare ourselves for them as well.
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