Article 25(b) of the Basic Law: The Government states:
"If the Prime Minister has died, the Government shall designate another of the Ministers who are members of the Knesset to be Interim Prime Minister pending the constitution of the new Government."
The law states in article 23(b) that:
"If the Prime Minister dies, the Government shall be deemed to have resigned on the day of his death."
Such resignation does not mean that a new Knesset election must be held, but rather that a new government must be formed. In such an event, the law provides, the President initiates the procedure to form such a new government. The outgoing government continues to function as the government until the new one is formed. No new ministers may be added to such a "transition government", nor can a minister resign. Nevertheless, such a government enjoys all the powers and responsibilities of any Israeli government, and the Interim Prime Minister enjoys the full powers of a prime minister. The Knesset cannot express no-confidence in a transition government. Decisions taken by previous government decisions remain valid unless reversed or amended.
The law states that the President must consult with representatives of the Knesset factions, not necessarily with all factions, following which consultation he will assign the task of forming a government to a Knesset member who has notified him that he is prepared to accept the task. The law allows the President to use his discretion is assigning the task of forming a govenrment. Traditionally, however, the President assigns the task to the person who has the best chances of forming a government that will receive the support of the majority of the Knesset. In the event the political parties are evenly divided, the President's discretion takes on particular importance.
With regard to the fact that the late Prime Minsister served also as Defense Minister, the government must choose another minister to fill this post, subject to the approval of the Knesset. Until such time as the government does so, the Prime Minister will fill the post of Defense Minister.
Once a new government is formed, it will have to be presented to the Knesset, announce its basic guidelines and the list of ministers, and request the confidence of the Knesset. This entire procedure can, legally speaking, be completed within several days.
BRIEFING BY CABINET SECRETARY SHMUEL HOLLANDER ON LEGAL SITUATION OF THE ISRAELI INTERIM GOVERNMENT
Government Press Office, November 7, 1995
Hollander: According to Israeli law, when a prime minister dies, the government is considered to have resigned. In other words, we now have an interim government -- or transition government, as we say in Hebrew. Since we must have a prime minister, according to the law, the government must assign one of its ministers who is a member of the Knesset to be acting prime minister. The president, according to the law, must begin a procedure to form a new, permanent government; permanent, that is, until elections are held.
Let me explain the significance of the interim government. This is the strongest form of government we can have -- because such a government cannot resign, and no minister can resign from it. On the other hand, no other member can join the government from outside. Most importantly, the Knesset cannot vote on a non-confidence motion, so the government is very, very strong. Theoretically, this type of interim government can continue functioning until the elections if, because of some reasons which I will explain, a permanent government is not constituted.
After the seven days of mourning, President Ezer Weizman will be consulting with representatives of parties in the Knesset in order to assign a Member of Knesset to try and form a government; as it seems now, I believe the person will be Shimon Peres. He will have 21 days to try and form a government. If he should not succeed within these 21 days, he can ask for an additional period, up to a 42-day limit. If he does not succeed by then, another Member of Knesset will be assigned.
There are all kinds of legal possibilities. Shimon Peres can, for instance, try to form the same government, or a government based on the same parties or coalition as now. Of course, there could be changes in portfolios among the ministers, but the political situation is the same, with the same parties forming the same government.
There is another possibility: he can try to form a broader coalition; some other parties may join the coalition. This is also a legal possibility. He can try to form the same government -- coming to the president and saying "this is my government" -- and, afterwards, try to add more parties to the coalition. And there is also another possibility: he could say that there is a problem, that the coalition is not strong enough, and that he does not have enough support in the Knesset -- and, since elections are due only in about a year, he can try to pass a law to have the elections earlier. Of course, he needs a majority in the Knesset, because it can only be done by law; otherwise, the date of the elections remains November 1996. This is the legal situation as it stands now.
Q: Does Peres not have the power, like in the British parliamentary system, to tell the President that he lacks support, and that he will therefore recommend the dissolution of the Knesset?
A: Yes, that is correct.
Q: Would the legal situation be different two years from now, when the prime minister is directly elected?
A: The legal situation is based on the present law. We have a new Basic Law: Government, which will only be valid after the next election. After November 1996, if the election takes place in November 1996, the situation is going to be completely different, because the prime minister is going to be elected directly by the people -- who will vote for both the Knesset and the prime minister. Had this tragic event happened two years from now, we would have had to hold elections for prime minister.
Q: Does the 42 days you mentioned include the 21 days, or are they additional?
A: Yes, you have 21 days, after which you can ask for additional time. The total limit is 42 days. If you do not succeed within 42 days, then somebody else is selected. The President must ask Shimon Peres to form a Government -- and, although he could do this immediately, he will wait until after the seven-day mourning period out of respect for the deceased.
Q: If the elections were called earlier, would the prime minister stand for direct election?
A: Yes, because the new law would take effect.
Q: When there is a direct election for the prime minister, will candidates be selected through primaries?
A: Yes, of course. The date set for the primaries is March 1996. Naturally, if the election is moved up, the primaries will also take place earlier.
Q: If Peres does not succeed after 42 days, and a second Member of Knesset is also unsuccessful in forming a government, what happens next?
A: The interim government continues until the elections. There cannot be a vacuum; we cannot afford to be without a government -- even if it is an interim government which is, as I said before, quite a strong government. This government has full authority and can function without any problem. Of course, theoretically, it can function until the elections if nobody succeeds in forming a new government, and if there are no early elections. Thus, in theory, it can continue until November 1996. At the same time, if early elections are not called, and nobody succeeds in forming a government, the President has no power to force a solution; when this happened before, however, early elections were held, as they probably would be in this case.
Q: If Peres fails, does each subsequent person also have 42 days?
A: Yes.
Q: If Peres wants to call early elections, is there a time limit?
A: When you call for early elections, you have to do it in accordance with a law -- so it would depend what the law says. Of course, there are some technical obstacles, because some preparations have to be made. Usually, a minimum of about 60 days is needed. Further, according to the regulations of the political parties in Israel, primaries are also a must -- and this too will take time, which should be taken into consideration. Given this, I would say that it would take at least three or four months before elections could be held.
Q: Are there any kind of restrictions regarding the Government's treatment of the peace process?
A: None whatsoever. It is 100 percent a government -- and even more, because regular government is always in jeopardy. There have been at least 200 Knesset no-confidence votes which, while not succeeding, did not always let ministers travel abroad and the like. An interim government does not have this kind of problem; it has immunity. Nevertheless, the Acting Prime Minister will still be interested in forming a permanent government. First of all, he may want to make some portfolio changes among the ministers -- and there is a legal question as to whether he can do this in an interim government. Secondly, from the public point of view, this is not a good situation: dealing with it is a must because we cannot function without a government, but the better alternative is to have a normal government. Therefore, I believe that Acting Prime Minister Peres will prefer to have a permanent, stable government as soon as possible.
Q: Can he appoint, for instance, a new defense minister?
A: According to the law, he now automatically becomes defense minister. He is now Acting Prime Minister, Minister of Foreign Affairs and also Minister of Defense.
Q: If Peres foresees that any government he tries to create will fall on a vote of no-confidence, and thus stays with the interim government, is there anything technical that forces him to make an attempt at creating a government to present to the President?
A: He has a time limit -- so , if makes no attempt, the President will necessarily assign someone else.
Q: Are you saying that Peres cannot legally make any portfolio changes in the interim government?
A: It is a legal question, because there are two articles which somewhat contradict each other. There is no conclusive answer. This could possibly be a reason to call for a new government.
Q: Is there some historical precedent that might shed some light on the legal situation?
A: Since 1948, we have had 25 governments, so we have had all types of political crises. There was a case when a prime minister died in office -- Levi Eshkol in 1969; Golda Meir then became prime minister. When Rabin stepped down in 1977, and Peres became prime minister until elections were held. Peres was not then acting prime minister in an interim cabinet because Rabin had not actually resigned; he suspended himself because of some legal problems he experienced.
Q: If Peres were to become incapacitated, is there a natural No. 2 while the interim government is in office?
A: Legally, Peres was not No. 2; he was a political No. 2. The government could also decide to assign some other minister as an acting prime minister. Peres, however, was chosen by a vote of the Government -- and that was natural because he was second in Labor. Of course, any other person selected would have to be from among the Cabinet, since no external appointments can be made in an interim government.
Q: Is there a legal limit to the number of portfolios someone can hold?
A: No, but the Supreme Court quite often interferes in these matters. I believe that, theoretically, holding two portfolios is fine, but three could be a problem. Of course, we had this problem before when the late Prime Minister Rabin was Prime Minister, Minister of Defense, Minister of Health, Minister of Religious Affairs and Minister of the Interior -- and it was strongly implied that the Supreme Court would not stand for this.
Q: Given the lack of a constitution, could the Knesset change this procedure if it wanted to do so?
A: Yes it could. In fact, the new law on the direct election of the prime minster -- about which there is a debate about whether it is a good law or not -- could also be challenged before the next elections.