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Wednesday, February 15, 2006

Civics anyone?

A few weeks ago a friend of mine from Hashmonaim sent me an email asking a fairly straight forward civics question (which I've edited for brevity):

Hi David,

There's something I don't understand and thought maybe you could shed some light.

Sharon won his position as PM through the voting process which specifically gave the Likud party enough votes to form the government and have its #1 person as PM, is that right?

The PM then left the ruling party.

Doesn't the party that got the most votes retain it's right to decide on the country's leadership and the cabinet ministers?

Why would Olmert now be acting PM - shouldn't it be a Likud person?  Shouldn't Likud as the winning party still have the authority to run the show?

Or perhaps the Likud actually did/does have the right but was/is unable to act on it?

Just seems strange that the country can vote for a party and its leader, then the leader changes his personal political direction, actually leaves the party, and what had been a vote by the people for country leadership is now ignored in favor of his new party that never received a single vote.

Is there a justification for this based on current rules and regulations of Israeli voting and the party system?

Now, I grew up steeped in the minutiae of American civics.  OK, maybe that's a bit of an exaggeration... but I can still sing most of Schoolhouse Rock's "I'm just a bill..."

Anyway, my point is that over the years I seem to have miraculously acquired a fairly respectable body of knowledge about how the US government operates.  But now that I am in Israel I can't answer even the most basic civics questions... and this question from my friend was far from basic stuff. 

So, I forwarded the email to close friend and fellow bourbon aficionado who also happens to be a member of the Likud Central Committee.

His response was as follows:

Hi David,

Your friend might be right.

The law says that the replacement will be chosen from among the members of the PM's "faction" ("siyah") which can be plausibly understood to mean the party in which he was elected. The Attorney General has interpreted it to mean "faction" in the narrow sense, namely the faction to which the PM now belongs. (This "faction" has legal standing in terms of campaign funding and other stuff.)

Yossi Fuchs, an attorney from Neve Daniel, has brought suit to the Supreme Court, arguing in favor of the first interpretation. Last I heard, he thought that the resignations of the Likud ministers was the last nail in the coffin of his case. In any case, it never stood much chance given the players.

This response was a bit of an eye-opener.  I couldn't figure out why nobody in the media seemed interested in discussing the legal interpretations and implications.  If this were happening in the US, the talk shows would be clogged with constitutional scholars espousing myriad theories, literally around the clock! 

But here in Israel? Nothing.

Then last week I saw an intriguing post on Israpundit by Akiva of M Paths entitled 'Breaking Israeli Law - The temporary PM (which I've reposted here with permission).  I don't know Akiva's background, but on the face of it, he seems to make an interesting argument:

Recent Israeli government pronouncements, especially around events in Amona, have made clear that the rule of law is of supreme concern in Israel. So lets take a brief look at the biggest public violation of Israeli law currently going on.

Israel Basic Law: The Government : Section 30 Inability to function - “(b) Should the Prime Minister be temporarily unable to discharge his duties for a period not exceeding 100 consecutive days…”

This is the current provision under which the government of Israel, in particular the Kadima controlled executive branch, is operating. It works under the assumption that the Prime Minister is temporarily unable to discharge his duties. Which, of course, is a complete and total lie, an illegality being completely ignored! The reason for this lie is…

Israel Basic Law: The Government : Section 29 Acting Prime Minister - “(a) Should the Prime Minister die, be permanently incapacitated…the Government will empower one of the Ministers who is also a Knesset member, to serve as acting Prime Minister

Meaning, the Knesset, according to party strength (the largest party in the Knesset is Likud right now) votes in an Acting Prime Minister if the Prime Minister is “permanently incapacitated”. Let’s be clear, Prime Minister Ariel Sharon suffered a hemorrhagic stroke, had brain surgery 3 times, is on a respirator and feeding tube, has been in an extended coma, and today had part of his intestines removed. Recovery from a minor stroke takes months to years. Everyone having a major stroke is incapacitated, in a few very rare cases they may recover some very limited communication ability. By any definition of the term, Prime Minister Sharon is permanently incapacitated from serving as Prime Minister.

The current government of Israel is illegal.

Apparently someone is starting to wake up to the fact that perhaps the fluid manner in which the leadership passed from Likud to Kadima should maybe be examined more closely.  This morning there was a Jerusalem Post article about how three of the more senior Labor Party defectors (Shimon Peres, Dalia Itzik and Haim Ramon), may have either intentionally or inadvertently circumvented the law in order to remain in the inner sanctum of Israeli politics.

So, today's question, dear readers:

Has the current Kadima-led government simply strolled to the front of the line hoping nobody would notice (a classic Israeli move if ever there was one), or did legal authority to govern pass to Kadima by some obscure ruling of Israeli law that nobody has yet been able to explain to me?

Please show your work.


Posted by David Bogner on February 15, 2006 | Permalink


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You brought up the case of Peres, Itzik and Ramon, and that actually should be the answer to your first question. From what I understand, only if a third or more of a party secedes do they have the right to claim to be a new independent party with everything that comes with that. That's why when Kadima was formed it was so important for Sharon to get at least one third of the Likud MKs. But in the end, he did get that third. Now the remaining members of the Likud could have tried to make a new government - and to a certain extent they did try - but they couldn't come up with 61 MKs. So while it's not an ideal state, I'm not sure you can point out any individual decision that was unconstitutional/illegal.

And that is the issue with the Labor members as well, since they were not a third of the party.

Posted by: Dave | Feb 15, 2006 10:19:31 AM

Nothing like a parliamentary system with no constitution for fun and excitement. Toss in an oligarchical supreme court and there's no telling what could happen.

Posted by: Scott | Feb 15, 2006 11:37:08 AM

Sorry to respond off-topic, but we have the whole Schoolhouse Rock on DVD, and you are welcome to come to Jerusalem and watch it if you are missing it :)

My 5 year old already knows parts of it by heart!

Posted by: Safranit | Feb 15, 2006 11:49:03 AM

Dave... thanks for that, but it doesn't touch on the second issue of whether the PMs incapacitation is temporary or permanent.

Scott... Just as an aside, the guy who attempted to answer the original question is actually on the committee that is responsible for drafting the constitution. Israel will have a constitution, and one of the issues this document will have to address is how to establish an independent judiciary that is not self-selecting. BTW, what the heck are you doing awake at this hour???

Safranit... Forget School House Rock... it's a shame that we live so near one another and haven't gotten together for a cup of coffee or something in all this time. Let's figure out an opportunity to meet. Oh, and as far as being off-topic... if I mentioned it or my post made you think of it, it's not off-topic. :-)

Posted by: treppenwitz | Feb 15, 2006 12:02:06 PM

I don't really follow the second question. Olmert is *only* "acting Prime Minister". If Sharon were to be declared permanently incapacitated, then Olmert could (and probably would) be appointed as the full Prime Minister. From what I understand, the attorney general has not declared Sharon permanently incapacitated both because his medical state doesn't absolutely require that (which is debateable) and because of the upcoming elections (which would give an advantage to Olmert if he was Prime Minister and not just acting.)

So I still don't understand what's illegal...

Posted by: Dave | Feb 15, 2006 12:15:15 PM

Well, you all knew I had to jump into this discussion. So, off the top of my head because its almost lunch time:

When Sharon left the Likud and created Kadima he activated Article 29 of the Basic Law: Government, asking the President to dissolve the Knesset. Once the Knesset is dissolved in this way, the law states that the current Prime Minister (nobody disputes that Sharon was Prime Minister at that time) remains the head of the government until the next elections (unless a 61 vote coalition can be formed, which didn't happen). Period. End of story. While the law doesn't contemplate that the Prime Minister might have left his party and no longer represents one of the largest parties in the Knesset, that doesn't make the law any less applicable. Thus, had Sharon not had a stroke, nobody could have argued, legally, that he shouldn't remain Prime Minister. (We have laws for a reason, folks, whether or not you like their outcomes in a specific circumstance.)

The question then becomes who replaces an incapacitated Prime Minister. The applicable language in the law, as Treppenwitz noted, is "the Prime Minister's faction". Israeli law specifically allows an MK, including the Prime Minister, to change parties and recognizes the new party as his own for various purposes (funding, for instance). Although it might be an argument in political science whether it is right/logical to allow a Prime Minister to be voted in as a member of one party and then have him leave, there should be no argument (though there have been more absurd bagatz's brought, I admit) that the Prime Minister has only one "faction". Today, that faction is Kadima.

Finally, the question of permanent vs. temporary incapacitation: Akiva, as quoted by Treppenwitz, says that "the Knesset, according to party strength (the largest party in the Knesset is Likud right now) votes in an Acting Prime Minister if the Prime Minister is “permanently incapacitated”." However, Article 29 of "Israel Basic Law: The Government" says that the "Government", not the Knesset, is empowered to appoint an acting Prime Minister. The "government", now, is Kadima (see section 5. (a), which states that "the Government is composed of a Prime Minister and other Ministers". Admittedly, it’s a minority government, but its still the government. So it doesn't matter whether Sharon is temporarily or permanently incapacitated.

Sure, the system is ridiculous (as much for making me feel like a lawyer today as for anything else.) But it needs to be followed.

Finally, those of you who are serious about the need to change the system should contemplated voting for Kadima, which has placed governmental reform as a priority in its platform. :-), in the absence of a usable punctuation mark for sarcasm.

Posted by: President, Kippot Srugot for Kadima | Feb 15, 2006 12:18:38 PM

Dave... I'm not saying anything is illegal, that was Akiva's point. I am simply trying to understand all the various issues related to how and why the current political landscape looks like it does.

President... Thanks! That was a very well-organized contribution to the discussion. I hope that other commenters will read through what you've said before speculating (as I was tempted to do). :-)

Seth... Why do you always in such an aggressive stance? There is no need to "bring [me]out of the Sharon conspiracy theory mode" since I was never there. I was very up front in today's post to say that I have zero background or working knowledge in Israeli civics so I was very confused by some of the things I was hearing from the quoted sources. I can understand that you might see these quoted sources as a suggestion that things might have been accomplished in a non-traditional way, but nowhere in my post have I done anything but ask for better-informed people than myself to offer their expertise. With that said your opening statement seems to confuse seats in the government with seats in the Knesset. Beyond that I am still in the dark and not ashamed to admit it.

Posted by: treppenwitz | Feb 15, 2006 12:59:39 PM

Correct me if I'm wrong, but didn't Labor and Likud both leave the government in order for there to be new elections? If that's the case
then maybe Kadima, whether it was the voted party or not, does have the most seats.

Also, just like a few years ago when what's his name in the US senate switched from Independent to Democrat (I think that's how it went) and
helped shift the entire dynamic of the senate. It seems to me that what happened here is that elected members of the knesset switched parties, and regardless of which party they were originally in, they
were elected and now the new party has the most seats.

Just like how Yossi Paritzky was originally voted into Shinui, but then started his own party, if everyone switched to his party, then his party would be leading the government instead of Kadima. (Just an example to bring you out of the Sharon conspiracy theory mode).

It's true that when you vote in Israel you vote for a party, but the idea is that you are voting for the party list, not just the party platform.

That wasn't clear at all, but maybe you'll be able to get what I'm trying to say.

Posted by: Seth | Feb 15, 2006 1:06:35 PM

i was thinking about responding but see that 'president' answered quite well.
it is sure that if there was a legal way to make trouble via the courts it would have happened.
so, this is the only legitimate government. if you have a 'beef' with it-vote for a different party.
so there are some people who think that breaking the law is justifiable and the police should not inforce the law.
but as you have noted in the past (the trampistim) there are certain parts of the population that have a very strange view on the rule of law.
i know this is simplistic but i don't have the time (or flair) to write more (or clearer)

Posted by: kobi | Feb 15, 2006 1:06:56 PM

Kobi... Where in this post have I (or anyone) brought up any defense of breaking the law. I find your attempt to sidetrack this discussion with whatever feelings you may have about Amona to be a tad distasteful. I apologise if I have misunderstood you but I don't think I have.

Posted by: treppenwitz | Feb 15, 2006 1:11:20 PM

In classical Jewish style, let me answer your question with a question.

I’ve followed Sharon’s health turmoil as a doctor. He is in a prolonged and possibly irreversible coma. It is not unusual (Psychotoddler can back me up here) in such circumstances, especially when the patient is elderly, for families to place some limits on the aggressiveness of care that the patient should receive given his very poor prognosis for a meaningful recovery and his slim chances of living independently. For example, many families by now would have wanted to remove the ventilator and allowed the patient to expire if he couldn’t breathe on his own. This violates Jewish medical ethics, but not secular medical ethics. In any case, a decision that would have been acceptable religiously and medically is to forego surgery for his necrotic (=dead) intestine. His necrotic intestine is a very serious complication and despite the surgery makes it unlikely that he’ll survive this hospitalization. Without the surgery, he certainly would have died within days. The gruesome question is: are his family and his doctors doing everything they can to keep him alive simply so he doesn’t die before elections? Meaning, would his family have wanted to give up by now and forego some of the invasive treatments and just allow him to die comfortably but were talked out of it so that Kadima could stay in power until the elections? I have no way of knowing but it’s a grizzly thought. In any case, he now faces very poor chances of survival, and lottery odds of regaining the cognitive abilities to resume office, so not declaring him permanently disabled is ludicrous.

Posted by: Doctor Bean | Feb 15, 2006 1:36:32 PM

sorry, it wasn't meant to be agressive. just humerous. there always seems to be some kind of government conspiracy theory floating around in Israel. Whether it is about the settlers or Rabin, and now Sharon. it wasn't meant to be a direct attack on you.

Posted by: Seth | Feb 15, 2006 1:43:15 PM

sorry i was making the connections without explaining.
those that are attempting to call into question the legitimacy of the government are attempting to
a. deligitmize the action in amona
b. justify illegal actions (they are 'breaking the law' so we can break the law)
this is also part of the campaign about illegal building by the beduin.
the strategy is to deligitimize the government in any way.
elections are in 6 weeks. we will all see then.
like i said tho - i am not clear and simplistic (i guess that is not an excuse) :)
i appreciate the forum and the general good exchange

Posted by: kobi | Feb 15, 2006 2:04:33 PM

No idea, last time I voted they still had that silly "elect the prime minister separately" thing. Just very glad there are elections soon.

Posted by: Lisoosh | Feb 15, 2006 3:25:14 PM

School House Rocks... hmm. Maybe we could make this into a song?

There is definitely potential here: incapacitations could be rhymed (all be it weakly) with alternating factions for starters.

The possibilities are endless.

*whistling in the dark*

Posted by: -y- | Feb 15, 2006 3:30:56 PM

Doctor Bean... Good question, but it only becomes an issue if Akiva's point about whether the PM is temporarily or permanently unable to fulfill his duties is legally relevant. At least one commenter seems to have made a pretty good case for this point being moot. Allison made a good point on her blog about the heroic measures that are being used to keep Sharon alive and she speculates (Correctly, I believe) that this is not something any of us would want for a loved one.

Seth... Considering the bad start to our online relationship I would ask that you not take for granted that I would know you were joking. We haven't exactly earned that level of trust with one another.

Kobi... There was no explanation necessary or appropriate to what you said. I was asking a question that revolved solely around legal issues related to Israeli civics... a topic about which I don't know enough to answer the question that was put to me. By your second comment I see that you still don't see the problem with making the illogical leap to discussing events at Amona. You can itemize the things going on in your mind to you heart's content... but you still showed poor judgement and a lack of restraint by trying to turn the discussion away from civics and towards your own feelings about the settlers and Amona. You have been a pleasant and interesting contributor to this journal for over a year... I don't know why you suddenly seem intent on hijacking the conversation. A reasonable response to a question about civics and election law is not "there are some people who think that breaking the law is justifiable and the police should not inforce the law.
but as you have noted in the past (the trampistim) there are certain parts of the population that have a very strange view on the rule of law.

Lisoosh... OK, you can come over and sit next to me on the 'I don't have a clue' bench. :-)

-y-... "The possibilities are endless" That's what scares me about your idea. :-)

Posted by: treppenwitz | Feb 15, 2006 3:35:24 PM

Hi Treppenwitz,

I actually addressed this exact question in detail in a post last month: http://joesettler.blogspot.com/2006/01/my-gd-there-was-coup-detat.html

There is a legal difference if Sharon is temporarily or permanently incapacitated (which may be why he is still being kept on a life support system for all you conspirists).

The court specifically stated that it was not deciding on the case of permanant incapacity only on temporary incapacity (as apparently the answer would have been different and undesired(?)).

Posted by: JoeSettler | Feb 15, 2006 4:12:42 PM

Part of my response in the comments section of my post on the subject:

We are having new elections because Sharon no longer had majority support in the Knesset.

But you forgot one thing, instead of a no-confidence vote, Sharon quickly called up Article 29, and amidst the political chaos, the President dissolved the Knesset (and whether that was all done properly is another very serious question).

At this point, the law states that the standing PM remains at the head of the caretaker government until new elections.

But the law never considered that the standing PM would break away from his party and no longer be the head of the 1st 2nd or even the 3rd largest party.

And furthermore, since Sharon is considered a PM who resigned, he can no longer be removed via a no-confidence vote, and thus legally remains the undisputable PM (except by G/d) until the elections.

As for building a new majority, I am not sure that was legally possible once Article 29 was invoked, so it wouldn’t matter anyway (but as this wasn’t tested there is no way to know for sure).

In short, once again, by very slickly manipulating unanticipated deficiencies of the law, Sharon positioned himself as non-deposable until the elections. Despite being the head of a rather small party, he again sidestepped the crisis by buying himself enough time to manipulate things further and position himself in the cat-bird seat once elections rolled around.

Posted by: JoeSettler | Feb 15, 2006 4:18:16 PM

I see it's 'political Wednesday' at Treppenwitz. :(

Weren't there any interesting sightings on the way home from work last night that you could tell us about?!!!

Posted by: Val | Feb 15, 2006 4:57:16 PM

Wht JoeSettler calls "slickly manipulating unanticipated deficiencies of the law" I call following the laws.

At the same time I assume that many on the Right (though I can't assume this about JoeSettler based solely on the name he calls himself because that would make an ass out of u and me) have little problem with the law breakers in Amona and Kfar Darom etc.

When breaking the law works for you its called having your political say in a democracy. When complying with the law works against you, its called "slickly manipulating unanticipated deficiencies of the law".

Chayei Sarah would be appalled by that kind of hyprocracy.

Um, :-, sort of.)

Posted by: President, Kippot Srugot for Kadima | Feb 15, 2006 5:35:37 PM

oy! this again?

Posted by: Shevy | Feb 15, 2006 6:51:21 PM

I made brownies for the bench crowd.

Posted by: Lisoosh | Feb 15, 2006 7:03:37 PM

Barak at IRIS Blog scooped the world press on the Sharon story. 15 minutes after the 2nd Sharon stroke was announced, he had the whole medical picture wrapped up, i.e. that he was permanently incapacitated. On the day of the Attorney General's decision, he called it "a highly suspect decision with potentially enormous political implications...to rule that Sharon is temporarily (not permanently) incapacitated."

Posted by: FredLee | Feb 15, 2006 7:06:43 PM

Hey, I was content quoting Animal House. But someone (ahem) made the claim that Kadima is no better than a South American junta which came into power via coup (or something like that), and I was forced to defend them.

Maybe I just should've said "Thank you, sir! May I have another?"

Posted by: President, Kippot Srugot for Kadima | Feb 15, 2006 7:41:04 PM

Joe Settler... Thanks for clearing that up. Just when I was starting to think the whole temporary/permanent incapacitation issue was a Red Herring, I have to go back to square one. I'll check out your post and weigh in later. Maybe. In the mean time, can we please dial back the rhetoric just a tad? Please?

Val... No, sadly I managed not to humiliate myself even once today. although there's still hope... I have at least 3 more hourse before I go to bed.

President... I won't take it from Kobi and I won't allow it from you. No kidding around here... the settler/Amona issue is not on the table at the moment. If you've said all you have to say on the issue then good night. I said GOOD NIGHT, SIR!. :-)

Shevy... Stop back tomorrow. I'm sure I'll have spilled something on myself or run over something by then. :-)

Lisoosh... Low carb I hope.

Posted by: treppenwitz | Feb 15, 2006 8:29:06 PM

What's his name was Senator Jeffers, of Vermont, who switched from Republican to Independent.

Posted by: Jordan Hirsch | Feb 15, 2006 8:48:32 PM

What was I doing up at that hour?:

Why waiting for you to post. What else?

(think back to your post about naps)

Posted by: Scott | Feb 15, 2006 8:55:17 PM

Huh... it's amazing I've never heard this issue raised until now. I've heard some people saying that Sharon is being kept alive until elections, but didn't even think of the possible relevance of the party switch. Thanks for the post.

Posted by: Irina | Feb 15, 2006 9:00:30 PM

I'm with Lisoosh... pass the brownies down the bench, please! ;)

Posted by: Val | Feb 16, 2006 2:20:22 AM

Jordan... Good to see I'm not the only one bothered by that. I mean how hard would it have been to gooogle the guy to be able to make a clear, cogent statement? :-)

Scott... We need to find you a hobby. :-)

Irina... Just remember that like me, everyone who posts here could very easily be full of sh*t. Take any and all information you read here with a big handful of salt. :-)

Val... You thought this post was bad... you are so going to kill me over today's post. ;-)

Posted by: treppenwitz | Feb 16, 2006 10:30:18 AM

David wrote:

President... I won't take it from Kobi and I won't allow it from you. No kidding around here... the settler/Amona issue is not on the table at the moment.


Sorry sorry sorry.

OK, here's one real point that few people seem to have raised: How much difference does it actually make which party is in control for the next almost-six-weeks? Even if we take the question back to a point a week or two after Sharon's second stroke, the date of elections had already been set and so it was clear that any new government would be strictly a "caretaker" one. Had the date of elections not been set, then the situation would be quite different - six or seven months' worth, anyway, since elections would have had to occur by November.

Specifically, I rather doubt that Netanyahu wanted to be the interim Prime Minister. He wouldn't be able to accomplish anything in such a short period, and he'd be blamed for anything that went wrong. And of course, his record for being re-elected once he's in office is zero-for-one!

Posted by: Don Radlauer | Feb 16, 2006 5:39:48 PM

David, perhaps you can set up two blogs?

One, of course would continue to be Treppenwitz, for all those goofy, humilating moments that we love to share and goof on you; and a second one, just for all your old and new buddies, who love to shout and rib each other. Perhaps it can be called - Wednesdays with Treppy. : )

(get it - a spoof to Tuesdays with Maury - hey, sorry - just in one of those corny moods.)

Posted by: jaime | Feb 16, 2006 6:31:33 PM

First off let me note that going by the references to Section 29, it appears you are going by the 1992 version of the Basic Law: The Government; there is a newer version as of 2001.

The Israpundit post you mention makes a basic mistake. The law states the government votes in an Acting PM, not the Knesset - which means the composition of the Knesset is irrelevent. The composition of the Knesset is relevent only when a new government needs to be formed, such as after the PM's or government's resignation.

Further, the new version provides for one of the ministers to hold the position of a permament Acting Prime Minister, who thus becomes the default choice to replace the PM; the government selects a APM only if the designated one cannot function for some reason. Olmert was designated the Acting Prime Minister when he joined the government (IIRC, but in any case long before Sharon's stroke), and took over for Sharon in that capacity.

As far as the question of temporary vs permanent incapacitation:
In the case of permanent incapacitation, the government is considered to have resigned on the 101st day of the Acting PM's tenure. If he's temporarily incapacitated for 100 days, he's considered to be permanently incapacitated. So as far as that goes, there isn't really that much of a difference. It was also deemed not to be especially relevent, since elections were already scheduled for March.

Posted by: Eyal | Feb 18, 2006 2:25:31 AM

I do not know enough about Israeli politics to have an opinion on this except to relate it to a Canadian example where voters feel ripped off because the man who was voted in twice as one party leader, Dave Emmerson, switched sides and was sworn in as Minister of International trade as another. Some people feel that the candidates should have to re-run because they are decieving the public by acting as a leader of a party other than the one they were voted for, but these kinds of things are happening more often, and politicians justify it by saying that the parties themselves are in a state of change.

I feel like in this case there is a bit of a loophole because no one will confirm that Mr.Sharon is permanently incapacited. I suppose because elections are coming up, no one wants to appear hasty. Yet, you'd expect there to be some sparks. No one is splitting hairs or getting very technical because the hope is that their party will be voted in anyway and they don't want to make a fuss?

It's a good question.

Posted by: sirbarrett | Feb 19, 2006 7:10:52 AM

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