What is “Incapacity” and what are the Implications of a Prime Minister’s Incapacity?

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When is the Attorney General empowered to declare that the Prime Minister is incapable of fulfilling his duties? When does temporary incapacity become permanent? What has the Court ruled in the past about a declaration of incapacity concerning Benjamin Netanyahu?

Flash 90

What is “Incapacity”?

“Incapacity” refers to a situation in which government officials are incapable of performing their duties. It may be temporary or permanent and result from diverse circumstances. It may be based on medical or legal grounds. The relevant Basic Law does not enumerate the situations that may trigger incapacity.

According to Section 16(b) of the Basic Law: The Government: “Should the Prime Minister be temporarily unable to perform his duties, his position shall be filled by the Alternate Prime Minister. After the passage of 100 consecutive days on which the Alternate Prime Minister served in the place of the Prime Minister and did not return to perform his duties, he shall be deemed unable to perform his duties on a permanent basis.”

Not only a Prime Minister

Incapacity may apply to other officials as well, including the President of the State and the Speaker of the Knesset; however, the provisions in those cases are different. With regard to the President, he can inform the Knesset that he is unable to perform his duties. President Katsav invoked this authority three times. He requested a single day of incapacity on the day of the inauguration of the new President of the Supreme Court in September 2006. He again requested a declaration of incapacity in 2007, when the Attorney General decided there were grounds for an indictment against him. After the Knesset approved his request, his powers were transferred to the Speaker of the Knesset, but it was still not possible to indict him. After three months, the Knesset extended his incapacity status until the end of his statutory term of office—five and a half months—without his submitting his resignation. The Court rejected a petition against the first request for incapacity, ruling explicitly that ill health is not the only grounds for incapacity.HCJ 7466/06, Marzel v. President Moshe Katsav (2006)

In addition, subsequent to a two-thirds vote by the Knesset House Committee, a majority of the Knesset is empowered to declare that the President of the State is incapacitated on the grounds of ill health, on the basis of a medical opinion.

The Basic Law: The Knesset stipulates that the Speaker of the Knesset may declare his or her incapacity, subject to ratification by the House Committee.

What are the Grounds for a Declaration of Temporary Incapacity?

As stated, the Basic Law does not define the circumstances that create a situation of incapacity or the grounds for such incapacity. It almost goes without saying that a medical condition that prevents the Prime Minister from performing his or her duties (as was the case with Ariel Sharon) is a classic example of incapacity. Clearly, there may be instances that are not health-related but in effect make it impossible for the Prime Minister to function. The Basic Law: The Government, as amended to apply to a rotation Government, takes this point into account, in that it refers specifically only to incapacity due to the state of the Prime Minister’s health. The implication is that the amendment accepts the position that there are nonmedical grounds for incapacity.

The Court has ruled this way in the past, in a petition calling for it to order the Attorney General to declare the incapacity of then-Prime Minister Ehud Olmert when he was being interrogated by the police. Although the Court rejected the petition, it stated that “should it later occur that the Prime Minister’s conduct makes it impossible for criminal investigations to be carried out in appropriate fashion, there may then be room for a declaration by the Attorney General of the Prime Minister’s temporary incapacity.” HCJ 623/08, Yitzhak v. the Prime Minister (2008)

That is, the Court ruled that in rare and extraordinary circumstances a criminal investigation may justify a declaration of incapacity, if the Prime Minister’s conduct impedes an appropriate inquiry.

This seems to support the argument that when the Prime Minister is on trial and his conduct includes systematic attacks on the prosecution and his use of government powers to hinder the proceedings against him, there is room for a declaration of incapacity for the very reasons cited by the High Court of Justice.

In 2021, the Court rejected a petition to order Attorney General Avichai Mandelblit to declare the incapacitation of Netanyahu. Even though Mandelblit argued that “it is impossible to deny that in extraordinary circumstances there may grounds for functional incapacity deriving from the fact that the Prime Minister is the defendant in a criminal case,” he too took the position that the petition should be rejected. In this context, the Court noted that the Prime Minister was bound by a conflict-of-interest agreement “as a condition intended to dispel the suspicions deriving from the extraordinary situation in which a criminal proceeding is under way against an incumbent Prime Minister.”HCJ 2268/21, The Movement for Quality Government v. the Prime Minister (2021)

Who Decides whether there are Grounds for Temporary Incapacity?

The Basic Law does not define who is authorized to determine that a situation of incapacity exists. The court rulings that deal with this question did not state unambiguously that it is the Attorney General who does so, although this was their implicit assumption. In the petition against Olmert mentioned above, the Court wrote that, “we assume, without deciding in this matter, that under the appropriate circumstances the Attorney General is empowered to declare the Prime Minister’s temporary incapacity.” In the petition filed in 2021 that addressed incapacity for Netanyahu, also referred to above, the Court wrote that “there are no grounds for intervening in the Attorney General’s ruling that at present the grounds that prevent the respondent from performing his duties have not been created”; but the Court did not question the Attorney General’s power to do so. In an obiter dictum on the petition about Prime Minister Netanyahu’s conflict of interest, Justice Meltzer stated explicitly that “a declaration of incapacity […] is the exclusive province of the Attorney General.”

This is effectively what happened with regard to Ariel Sharon. In response to the appeal calling for his permanent incapacitation, the Court wrote that, “the Basic Law did not stipulate the mechanism by which it is to be determined that the Prime Minister is permanently unable to perform his duties. Accordingly, we should assume that this authority rests with the Attorney General.” This statement by the court is not immune to criticism, however. Some argue that in a case of medical incapacity it is not clear why the Attorney General should be the person making the ruling.

As with every decision by the executive branch, it is possible to petition the High Court of Justice against a decision by the Attorney General to declare or not declare incapacity.

What are the Ramifications of Temporary Incapacity and when does it become Permanent?

As stated by the Basic Law, when the Prime Minister is unable to perform his duties, the “alternate “ or Deputy Prime Minister r steps in. When no minister has been designated for these positions , the Government must choose some other minister, who is a member of the Knesset, to serve as acting Prime Minister (§16(c)). If the incapacity lasts for more than 100 days, the Government is deemed to have resigned (§20(d)).

Does Permanent Incapacity Mean New Elections?

Not necessarily. When a Government resigns (as stated, if the Prime Minister’s incapacity lasts for more than 100 days, the Government is deemed to have done so), §30(b) of the Basic Law: The Government, applies. The President begins the process for the formation of a new Government, as per §§7–11 of that law: consultations with the Knesset factions and assigning the task of forming a Government to a Knesset member who accepts it, just as after elections. New elections are held within 90 days only if no government is formed after this process has reached an unsuccessful conclusion. Throughout this period, and until a new Government is formed, the outgoing Government (headed by the acting prime minister) continues to serve in a caretaker capacity.