Recent reports have surfaced regarding deliberations in the office of the Attorney General about the possibility of declaring the Prime Minister "Incapacitated". An IDI expert explains
WHAT IS INCAPACITATION?
“Incapacitation” refers to a situation in which a government official is unable to carry out his or her role. Usually this inability is temporary, but legislation on this matter also relates to permanent incapacitation.
Article 16(b) of the Basic Law: The Government stipulates: “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 does not resume his duties, the Prime Minister will be deemed permanently unable to exercise his office.”
It should be noted that other officials, including the President of the State and the Speaker of the Knesset, may also be deemed incapacitated. Other arrangements apply in these cases. The President, for example, has the option of informing the Knesset that he is unable to carry out his duties. Additionally, a two-thirds majority of the Knesset House Committee can decide, based on a medical assessment, that due to health conditions the President is temporarily unable to carry out his functions and then the Knesset, by majority vote, can declare the President incapacitated. Similarly, the Knesset Speaker can declare himself incapacitated, or the House Committee can make such a decision.
WHAT ARE THE GROUNDS FOR A DECLARATION OF TEMPORARY INCAPACITATION?
The law does not specify what constitutes incapacity or the grounds for such a declaration. Clearly, a medical issue preventing a prime minister from fulfilling his duties (as was the case with Ariel Sharon) is a classic case of incapacitation. However, there may be other situations—not necessarily health-related, that may, in effect, render a prime minister unable to carry out his duties. The recently amended version of the Basic Law: The Government (revised to provide for an “Alternate Prime Minister”—see below) takes this into account and stipulates the specific procedure to be adhered to when the incapacitation is for medical reasons. In other words, the law implicitly recognizes that there may be other, nonmedical, circumstances which constitute incapacity.
The Supreme Court ruled similarly in its decision on a petition to require the Attorney General to declare then Prime Minister Ehud Olmert incapacitated while he was under police investigation. Although the Court rejected the petition, it declared as follows:
We assume, without reaching a decision on the matter, that in specific circumstances, the Attorney General is empowered to declare a prime minister temporarily incapacitated. Such a declaration was in fact issued following the sudden deterioration in the medical condition of former Prime Minister Ariel Sharon. … But even if this is the case, it is clear that any such declaration in the context of a criminal investigation of a prime minister is an extreme step that may be taken only in rare and exceptional cases. … Should it become apparent in the future that a prime minister’s conduct does not allow criminal investigations to be carried out in appropriate manner; there might then be room for the Attorney General to declare the Prime Minister as temporary incapacitated.
In other words, the Court assumes that in rare and exceptional cases, the fact that a criminal investigation is in progress, may justify a declaration of incapacitation, if such a prime minister’s conduct interferes with the ability to conduct an independent and professional investigation. This becomes more likely when a trial is under way, and in when a prime minister’s conduct includes systematic attacks on the State Attorney’s office and uses governmental powers to impede his trial. In such a situation there might indeed be room for a declaration of his incapacitation, based on the grounds specified in the Supreme Court’s opinion.
WHO DETERMINES THE GROUNDS FOR TEMPORARY INCAPACITATION?
The law does not stipulate who determines the grounds for temporary incapacitation, but the Court has ruled that the Attorney General is the official empowered to make such a determination for a prime minister, as was the case with Ariel Sharon. His decision, like any decision by an administrative entity, can be appealed to the Supreme Court. This would be likely occur if a Prime Minister maintains that he is in fact not incapacitated and the Court would be called upon to settle the matter. There is also the possibility that the Supreme Court, in response to a petition filed, could instruct the Attorney General to declare a prime minister incapacitated or instruct a prime minister to suspend himself. Proceedings are already under way on a petition submitted by the Movement for Quality Government challenging the Prime Minister Netanyahu's refusal to sign a conflict-of-interest agreement drafted by the Attorney General (in violation of the commitment by his attorney on his behalf to the Supreme Court when it heard a petition against the legality of the coalition agreement between the Likud and Blue-White), the issue of incapacitation might surface in this context.
WHAT ARE THE CONSEQUENCES OF TEMPORARY INCAPACITATION, AND WHEN DOES IT BECOME PERMANENT?
As stated in the law, when a Prime Minister is incapacitated, the Acting Prime Minister automatically fills this role. If the incapacity lasts exceeds 100 days, the Government is deemed to have resigned.
DOES THIS APPLY TO A ROTATION GOVERNMENT?
When a rotation government is in place as at present—the alternate prime minister assumes the role of acting prime minister (Article 43b of the Basic Law: The Government). A rotation government with an alternate prime minister is an exception to the 100-day provision. According to Article 43a(a)(4), if the Prime Minister’s incapacitation is due to medical conditions and becomes permanent, the Government is not deemed to have resigned, and the special provisions granting continuity to the rotation government apply. Incapacitation on other grounds other than health (as is the possible case today) does not fall under this section of the law, and the Government would be deemed to have resigned.
DOES A DECLARATION OF INCAPACITATION AUTOMATICALLY LEAD TO NEW ELECTIONS?
Not necessarily. When a Government resigns (and, as stated, if the Prime Minister’s incapacity lasts for 100 days), Article 30b of the Basic Law: The Government, is set in motion, and the process of forming a new Government begins, pursuant to Articles 7–11 of the Basic Law: The Government in a similar manner to what occurs after a new election. The President holds consultations with the Knesset factions and then charges an MK who consents to do so, with forming a Government. New elections take place if the members of the existing Knesset are unable to establish a new Government. Throughout the interim period, and until a new Government is sworn in, the outgoing Government (headed by the Acting Prime Minister, who is the Alternate Prime Minister of a rotation Government) continues in office in a caretaker role.