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Transition does not mean paralysis By Ze'ev Segal Tags: Ehud Barak, Tzipi Livni  The Knesset will wake up today from its hibernation after an overlong recess, and find itself listening to political declarations by the head of a transitional government, who announced his resignation about a month and a half ago, but is still in business. Ehud Olmert heads an "outgoing government," in the language of the Basic Law on the Government, which will continue to fulfill its tasks "until the new government is formed." The announcement by Foreign Minister Tzipi Livni to President Shimon Peres that she has been unable to form a government, is supposed to lead the president to make a statement to the Knesset speaker, to the effect that he "does not see any possibility of achieving the formation of a government." In light of this the country will be run for months on end by a transitional government. Elections are expected to be held about three or four months from now, after which coalition contacts aimed at forming a new government will be conducted. The law allocates a long time for these discussions, so we can estimate the lifespan of the present government to be about half a year. In the present internal and external situation this is a "short eternity," which does not allow the Olmert government merely to observe the proceedings from the sidelines. A government in transition, from which ministers can now resign and to which new ministers can be added, is under a legal obligation to continue to fill the tasks of the government. The law does not formally restrict the activity of the prime minister and the ministers in such circumstances, or limit the transitional government to dealing with ongoing activities only. Advertisement A long period of transition reinforces the vital need for an active government that is not involved in "maintenance work" alone. In the past, some transition governments avoided making major decisions while others assumed more responsibility, but the High Court of Justice did not see fit to intervene in the manner in which they interpreted the nature of their role. In 2000 the government under Ehud Barak asked to conduct diplomatic negotiations with the Palestinian Authority, out of a desire to sign an agreement before the elections. A panel of seven justices, headed by then-president Aharon Barak, rejected the petition against it, explaining that no ruling "vacuum" had been created, and that a transition government is designed to guarantee "continuity and stability." The rejection of the petition was based on a clearly necessary declaration that any agreement that would be signed would be brought up for the approval of the government and the Knesset. At the same time, the High Court determined a general principle stating that a transitional government must operate with restraint - except in the event of a case involving "a public need for action." In 2005 the High Court emphasized that in the "twilight" period it would be proper to refrain from public appointments if there is no vital need for them. About a month ago this approach led the three High Court justices who are members of the Judicial Appointments Committee to express a far-reaching viewpoint, to the effect that Supreme Court justices should not be chosen during the term of a transitional government. This statement was made despite the fact that the appointments dealt with in the committee are not political ones, and also in light of the vital necessity to appoint judges to all the courts. The position of the justices on the committee was opposed by the attorney general. Their approach seems unreasonable, and is not binding. It has led to a failure to choose Supreme Court justices in the meantime, only because the law will permit an appointment to that court only with the approval of seven out of nine members of the committee. On the backdrop of the existing law, we can examine the penetrating questions concerning the reasonable "horizon" of activity reserved for the Olmert government. These become more acute in light of the urgent need to continue a diplomatic process and to take steps in the financial arena in light of the present crisis. Even recognizing the fact that the foundations of the government are being affected by the change to a "transitional government," the complex issues at hand should spur support for the idea that such a body should be an active one and should benefit from broad legitimization of its activity. Although the government does not now formally enjoy the full confidence of the Knesset, we should recall that it did not lose public confidence as a result of a vote. The fact that it is a transitional government stems only from the prime minister's decision to resign. In addition, a pre-elections government of this sort can actually operate more vigorously than a transition government formed following Knesset elections. None of this permits the Olmert government, which is supposed to act with restraint and reasonableness, according to the above-mentioned court ruling, to sign a long-term diplomatic agreement. But its status enables it to conduct diplomatic negotiations, and perhaps even to agree to the outlines of an agreement - as opposed to affixing a final and binding signature to one. According to the instructions of the attorney general, public appointments of people with a personal or political connection must be made with special caution, but that does not mean imposing paralysis on essential appointments in various areas. The Knesset must also impose restraint on itself to prevent superfluous populist legislation, but that does not preclude continuation of legislative activity. The same is true of determining the date of the elections. The president's announcement that he does not see a possibility of forming a government after the legally allotted time has passed, leads to the dispersal of the Knesset and to the decision to hold elections within 90 days of the day of the announcement, according to the law. However, this does not prevent the Knesset from legislating, by a majority of 61 MKs, that the elections will be held on some other date. That is the meaning of the supremacy of the Knesset, which expresses the sovereignty of the people. A country in transition is not a country in an ordinary situation, and all government authorities must demonstrate the sensitivity required in a situation where nothing is the way it was any longer. Bookmark to del.icio.us   Livni ahead in polls Netanyahu loses lead he has held for two years, while Labor heads for election debacle. The frozen chosen In staunchly Republican Alaska, a Jewish Democrat may take state's lone seat in Congress.

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