Knesset in limbo

The decision to call early elections for the 22nd Knesset has set a number of political precedents. Among its other effects, it has created a situation in which it is likely that a transitional government (sometimes known as a caretaker government) will be in place for an extended period of close to a year (from the dissolution of the 20th Knesset in December 2018 to the expected formation of Israel’s 35th government around November 2019). In light of these highly unusual circumstances, we would like to present a review of the legal provisions concerning the powers of transitional governments, including the restrictions placed on those powers, from a comparative perspective.

Israel’s Constitutional Framework

In the current Basic Law: The Government (2001), section 30(b) states, under the heading “Continuity of the Government,” that “when a new Knesset has been elected or the government has resigned… the outgoing government shall continue to carry out its functions until the new government is formed.” Likewise, section 30(d) rules that such a government may appoint a Knesset member as a minister to replace “a minister who has ceased to serve,” and that this does not require an approval by the Knesset (unlike the appointment of ministers in a “regular” government).

On the face of it, the law places no restrictions on the powers of a transitional government, instead emphasizing the need to prevent a “governance vacuum” by ensuring that until a new government is sworn in, a government will be in place with the capacity to continue to perform all government functions. This was also the opinion of a commission led by Justice Berenzon, which published its findings in 1977.

The Rationale for Restrictions on Transitional Governments

1. Democratic Legitimacy

In parliamentary democracies, the government serves on the basis of a parliamentary vote of confidence. In the case of a transitional government, no such parliamentary confidence exists.[1] In effect, the government has no “popular mandate.”[2] The legitimacy of any government to act and make decisions rests on the support of parliament, which represents sovereign authority in a democracy, and the lack of such support impairs its legitimacy. According to Rivka Weill, the type of government that suffers most severely from a legitimacy deficit is the post-elections government — still serving after “the people have already had their say.”[3]

2. The Representative Problem

In any situation of representatives and their constituents, problems can arise with those representatives who seek to advance their own interests, instead of those of their constituents. There is a concern that in a transitional government, decision-makers may take actions aimed at serving their own personal or political interests rather than those of the public.[4] For example, before an election, they may take steps to enhance the chances of the ruling parties winning the election, for example; voter-friendly economic decisions. Likewise, after an election, the government that has lost power may try to execute last-minute opportunistic “grabs”[5] in an attempt to “leave its mark” on history or on public administration.

Supreme Court Rulings

The Israeli Supreme Court (sitting as the High Court of Justice, HCJ), has been turned to several times to rule whether a transitional government may exercise its authority on specific issues

In general, the court’s approach has been that there are very few restrictions on a transitional government (in line with the spirit of the Basic Law text). Over the years, a body of case law has emerged regarding these restrictions. The most influential ruling has been the Weiss HCJ case,[6] which examined the question of whether a transitional government could engage in negotiations with the Palestinian Authority. The court ruled that Ehud Barak, who had resigned as prime minister (under the previous Basic Law: The Government, which legislated a system of direct elections for prime minister), could indeed pursue such negotiations despite his resignation and that of his government. However, the court ruling also noted that any agreement that would be reached would have to be submitted to the Knesset for approval. For the most part, the ruling made general references to the fact that, under the rubric of administrative review, the court may assess the “reasonableness” of the government’s actions, and that the boundaries of reasonableness for a transitional government is narrower — and thus it must act with restraint, unless there is an “essential public need for action.” The court emphasized that the requirement of restraint is even more stringent during the period following elections, and before a new government has been formed.[7] Regarding the case at hand, the majority decision was that this was indeed an instance of an essential public need, and in any case, as mentioned, the court relied in its ruling, on the government’s commitment to submit any agreement that would be reached, for Knesset approval.

Later court rulings followed the same line, that a transitional government conducting negotiations is not overstepping its authority.[8]

Appointments under a Transitional Government

The main area in which the court has interceded and ruled that a transitional government may not take action — is that of appointments. In a series of rulings, concerning the appointments of chief rabbis,[9] members of religious councils,[10] and judges,[11] the court clarified that the government is under obligation to act with restraint, because these actions are not essential. These rulings (in contrast with the Weiss case) have elicited criticism from academic researchers,[12] with the main argument being that negotiations with a foreign entity can have irreversible consequences; while in some appointments, in which the government plays a negligible role, there was no justification for the court to intervene

The Attorney General has issued detailed directives on this issue.[13] , among them an explicit statement that appointments to senior positions — those requiring an appointments committee headed by a minister — are problematic. Where possible, it is preferable to extend the term of the serving official or to find a temporary replacement. Likewise, when an appointment process has already begun, in certain cases this process may be continued and completed, particularly where the appointment is a professional one and does not involve the political echelon, with each case being judged on its own merits.

“Election Economy”/Voter-Friendly Decisions

The Israel Medical Association v. Knesset HCJ case concerned pre-election economic decisions.[14] The petition was directed against the attorney general’s directive not to accept the decisions of the Health Basket Committee until after the elections for the 17th Knesset. By majority decision, the court rejected this petition and ruled that the attorney general’s instructions were sound, while also hinting at the possibility that pressure would be exerted on government decisions ahead of elections, as a form of “election bribe.”

There is also a directive on this issue from the attorney general (1.1904) that forbids “election promises”:

As a rule, administrative promises should be avoided. This instruction applies especially during an election period, when — as a matter of principle, extra care should be taken to avoid making promises or commitments to disburse benefits or allocate specific budgets on campaign visits to the field. Decisions of this kind should be made in accordance with proper administrative norms, and among other things — following an orderly decision-making process, including consultations with the professional echelons, and always in accordance with the binding policies. Decisions should not be made regarding the disbursement of benefits or allocation of budgets, and no such decisions should be announced during or in connection with campaign visits.

Prof. Shimon Shetreet notes that in 2014, the attorney general opposed the transfer of funds to West Bank settlements and the raising of the minimum wage, immediately prior to the elections, which forced the Knesset factions to raise the minimum wage through primary legislation instead. By contrast, in the same year and following the disbanding of the Knesset, approval was granted to put in place a target-price plan for the housing market.[15]

Transitional Governments’ Authority to Dismiss Ministers

It should be noted that the original Basic Law: The Government (1968) placed one restriction on transitional governments: the prime minister was not allowed to fire ministers. In fact, according to the courts (in the Kol and Hausner case[16]), it was also forbidden for ministers to resign, according to the court’s interpretation of the law at the time, and the government was subject to a “no-one in, no-one out” rule. By contrast, the 1992 version of the Basic Law: The Government, which legislated the direct election of the prime minister, merely stated that ministers should continue to serve in a transitional government. In any case, it is clear that under current law — unlike in the past — the prime minister is empowered to fire ministers in a transitional government.[17]

An International Comparison

The questions and challenges relating to the authority and actions of transitional governments[18] are common to all parliamentary democracies. In such regimes, the legitimacy of the government to exercise its executive powers is founded on parliamentary confidence. However, there are periods in every “political lifecycle” during which the government does not have the full confidence of parliament: (1) in the period between the decision to dissolve the parliament and the subsequent election day; (2) between election day and the swearing in of a new government; and (3) when a government loses a no-confidence motion.[19] In these cases, the government’s democratic legitimacy is impaired, which can be problematic when it seeks to decide on controversial or weighty issues. Therefore, some democracies have developed special arrangements to deal with these circumstances.[20]

These arrangements are founded on two primary principles:

The first principle is the rule that a transitional government cannot resign. This limitation is meant to prevent a country from being left without a functioning executive branch, and it exists in almost every parliamentary democracy — even in those without any other arrangements regarding transitional governments.

The second principle relates to the expectation that transitional governments will restrain themselves and maintain the status quo to the greatest extent possible — that they will refrain from pursuing policies, passing major legislation, making senior appointments, and so on. In other words, “it is assumed that such governments have limited life spans and limited freedom of action.”[21]

In democracies with a British tradition of government (“Westminster systems”), transitional governments are usually short-lived, and thus the relevant regulation tends to be limited. In Britain, for example, the first-past-the-post electoral system (FPTP) usually results in an absolute parliamentary majority for a single party, such that there is no need for coalition negotiations. Together with the lack of the need for an investiture vote, this has resulted in smooth transfers of power and very short periods of transitional government. The restrictions that now apply to UK transitional governments appear in the Cabinet Manual, in a section titled “Restrictions on Government Activity.” Among other things, it is expected that transitional governments will postpone activities such as declaring or adopting significant new policies; entering into long-term commitments; and approving senior appointments in the civil service, as long as delaying such appointments will not harm national interests or waste public funds. Regarding decisions that cannot be delayed, the rules state that they must be taken on a temporary basis, or following consultation with the opposition. In Australia, too, it is accepted practice that a transitional government should not take decisions on significant policy issues and should not make appointments to senior positions.

In multi-party democracies, in which it is common for the formation of a new government to be a lengthy process, and thus for transitional governments to last for extended periods, there tends to be more detailed regulation. It is clear that, over such lengthy intervals, decisions will need to be made which cannot be delayed. In the Netherlands, for example, the completion of legislation, presentation of budgets, and appointments to senior positions –needed to ensure the government’s smooth functioning — are all carried out through inter-party cooperation. In Belgium, the extended periods required to form governments[22] have led to an easing of the accepted restrictions on the activities of transitional governments. Thus, if in the past, such governments refrained from advancing legislation and making decisions on important issues, it is now acceptable for them to decide on urgent matters and on international commitments. At the same time, it is agreed that decisions on budgetary expenses are made using more complex procedures which are transparent and amenable to oversight.

In Portugal, the powers of transitional governments are defined in the constitution. Section 186.5 requires that transitional government “shall limit itself to undertaking such acts as are strictly necessary in order to ensure the management of public affairs.” In Denmark, there is also constitutional reference to transitional governments, but the language used is less restrictive. Section 15 dictates that they “do what is necessary to ensure the uninterrupted conduct of official business until the new cabinet takes up office.” In Sweden and Norway, there is no constitutional reference to this issue, but transitional governments have always refrained from advancing legislation and have restricted themselves to administrative issues.

Another model for addressing the challenges posed by transitional governments is that of the technocratic government, comprised of a prime minister and ministers who are unaffiliated with any political party and are tasked with running the affairs of state for a limited period. Austria currently has a technocratic government, which replaced the government of Sebastian Kurz after it was brought down by a non-confidence vote (the first such case in Austrian history). The president of the republic, based on the powers granted him by section 71 of the constitution, appointed a government comprising senior officials in the civil service and headed by the president of the constitutional court, Brigitte Bierlein. Section 37 of Austria’s constitution describes the conditions under which a technocratic government may be appointed. Two such governments have served since 2012, each of them for a short period of around a month.

Conclusion

The current situation in Israel, in which we have a transitional government whose term is growing ever longer, and which lacks — and in fact has never had — the confidence of the current Knesset, is essentially one of a “double” transitional government — it is both a “post-election” government, prior to the formation of a new government, and also a “pre-election” government. Thus, it would seem that the rationale for applying a narrower definition of reasonableness to its actions is even stronger than usual. However, Israeli law places almost no formal restrictions on transitional governments, excepting some case law and the stricter reasonableness standard requiring them to act with restraint. We have also seen that in comparative law, it is widely accepted for there to be restrictions on transitional governments in terms of a policy freeze, limiting them to day-to-day management of affairs.

One obvious consequence, according to Israeli law, is that senior appointments may not be made during this period, specifically those on which the government has real influence. Thus, it is also unacceptable for the government to set up appointments committees or to launch similar processes. These are considered an important and integral part of the appointment itself, and becoming involved in them may well constitute a trespass beyond the definition of reasonableness” afforded a transitional government. Similarly, according to case law and the attorney general’s instructions, the government should not make election promises and should refrain from enacting reforms, or indeed from any action that is not urgent and essential.

Beyond this, any actions of the current government that do not come under the category of “essential need” should certainly be subject to close scrutiny. What we have now, is not a regular government, and not even a regular transitional government.

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Bibliography

Bouckaert, Geert and Marleen Brans. “Governing without Government: Lessons from Belgium’s Caretaker Government”, Governance: An International Journal of Policy, Administration and Institutions 25 (2012): 173–176.

Golder, Sona N. “Bargaining Delays in the Government Formation Process.” Comparative Political Studies 43, no. 1 (2010): 3–32.

Herman, Valentine and John Pope. “Minority Governments in Western Democracies.” British Journal of Political Science 3, no. 2 (1973): 191–212.

Laver, Michael and Kenneth A. Shepsle, eds. Cabinet Ministers and Parliamentary Government. Cambridge: Cambridge University Press, 1994.

McDonnell, Duncan and Marco Valbruzzi. “Defining and Classifying Technocrat‐led and Technocratic Governments.” European Journal of Political Research 53 no. 4 (2014): 654–671

Schleiter, Petra and Valerie Belu. “The Challenge of Periods of Caretaker Government in the UK.” Parliamentary Affairs 68, no. 2 (2014): 229–247.

Shimon Shetreet. 2018. The Government: The Executive Branch—Commentary on the Basic Law: The Government, vol. 2. Jerusalem: Hebrew University, 2018. [Hebrew].

Rivka Weill. “The Twilight Hour: On the Powers of Caretaker l Governments.” Law and Government 13 (2010): 167–223. [Hebrew].

[1] It should be noted that, while the term “transitional government” according to the Basic Law applies only to the situation following elections or after the government has resigned, the courts have also expanded normative restrictions to governments still serving prior to elections that have been brought forward by passing legislation to disperse the Knesset. See Shimon Shetreet, The Government: The Executive Branch—Commentary on the Basic Law: The Government, vol. 2, (Jerusalem: Hebrew University), 516 [Hebrew].

[2] Rivka Weill, “The Twilight Hour: On the Powers of Transitional Governments,” Law and Government 13 (2010): 174 [Hebrew].

[3] Weill, “Twilight Hour,” 176.

[4] Weill, “Twilight Hour,” 177.

[5] Weill, “Twilight Hour,” 179.

[6] HCJ 5167/00, Weiss v. Prime Minister, 84 55 (2), 455 (2001).

[7] HCJ Weiss, 469.

[8] HCJ 9202/08 Livnat v. Prime Minister (2008).

[9] HCJ Mafdal Party v. Speaker of the Knesset, 84 57 (1), 710 (2002).

[10] HCJ 8815/05 Adv. Landstein v. Adv. Spiegler (2005).

[11] HCJ 9843/08 Legal Forum for Eretz Yisrael v. Judicial Appointments Committee (2009).

[12] Weill, “Twilight Hour,” 195.

[13] Ministry of Justice, “Appointments During a Period of Elections,” Attorney General Instructions to the Government, no. 1.1501, January 26, 1999, https://www.justice.gov.il/Units/YoezMespati/HanchayotNew/Seven/1.501.pdf.

[14] HCJ 2453/06 Medical Histadrut v. Attorney General (2006).

[15] Shetreet, The Government, 535.

[16] HCJ 623/76 State of Israel v. Moshe Kol and Gideon Hausner (1977). While Kol and Hausner had submitted their resignations before the prime minister had resigned and the government become a transitional one, the requisite 48 hours had not passed for their resignations to take effect, which meant that they were required to continue to serve “against their will.”

[17] According to Shetreet, The Government, 519: “This omission was deliberate … as it was argued that a situation should not be allowed in which ministers are forced to continue in their position, or alternatively, in which the prime minister is not able to appoint replacements after ministers have left the government.”

[18] The research and legislative literature uses various terms in this context, including “caretaker government,” “acting government,” and “interim government.”

[19] This relates to “regular” no-confidence motions. By contrast, in cases in which the government loses a constructive no-confidence vote there is no transitional government, because the vote that brought down the government simultaneously expressed confidence in an alternative government.

[20] As Golder points out, these are generally norms that are rooted in the country’s political culture, whether formally (in regulations, laws, or the constitution) or informally (as accepted practice). Sona N. Golder, “Bargaining Delays in the Government Formation Process,” Comparative Political Studies 43, no. 1 (2010): 3–32.

[21] Valentine Herman and John Pope, “Minority Governments in Western Democracies,” British Journal of Political Science 3, no. 2 (1973): 196.

[22] Following the 2010 elections, it took around a year and a half to form a new government.