1 (1968) 22 L.S.I. 257. See the commentary by P. Elman in (1969) 4 Is.L.R. 253. Sec. 18 of the Basic Law indicates the way in which the Government may add an additional Minister. Sec. 21(a) and (b) indicates the way in which a Minister may resign from the Government (by submitting a letter of resignation, his office becoming vacant 48 hours after the letter has reached the Prime Minister unless the resignation has been withdrawn) and also provides that a Minister who is a member of the Knesset, ceases to be a member of the Government if he resigns from the Knesset.

2 Under Israel's constitutional law, no authority is entitled to dissolve the Knesset other than the Knesset itself by a special law.

3 Sec. 3 reads: The Government holds office by virtue of the confidence of the Knesset.

4 See Rubinstein, A., The Constitutional Law of the State of Israel (2nd ed., 1974) 322Google Scholar; Likhovski, Eliahu S., Israel's Parliament—The Law of the Knesset (Oxford, 1971) 156Google Scholar; Klinghoffer, H., “Parlamentarische Demokratie in Israel” (1965) 14 Jahrbuch des oeffentlichen Rechts der Gegenwart Neue Folgeband 425, at 509.Google Scholar Although Prof. Klinghoffer wrote his article in 1965, i.e., before the adoption of Basic Law: The Government (1968), there is no substantial difference from the provisions of the Transition Law which was the Law in 1965. The same applies to Tsidon, A., The Knesset: Theory and Practice (1955) 217Google Scholar and id., The Knesset—Israel's Parliament (4th ed., 1966) 339. It is also the view taken by the government speakers.

5 See Jennings, I., Cabinet Government (3rd ed., 1969) 86 and 531.Google Scholar

6 Actually Mr. Rabin resigned and was not defeated; but Mr. Rabin resigned on the eve of the day where a non-confidence vote was about to be adopted Legally there is no difference between a government which “carries on” after resignation, or after having been defeated or even after the Premier's death. It should be added that in the case of the present continuing government, there is little doubt about the government being a minority government (in a number of cases since its resignation, the government has been unable to find support for some major decisions or Bills).

7 Normally, where a Minister who is member of the Knesset has resigned from the Knesset, he is considered as having also resigned from his membership in government. It must be stressed that a Minister (with the exception of the Prime Minister) need not be a member of the Knesset.

8 Sec. 18 of Basic Law: The Government. The prohibition of joining the Government, which acts under sec. 25, is rather illogical, since in any case the addition of a new Minister to a (formed) government requires approval by the Knesset.

9 Transition (Amendment No. 6) Law (1962) 16 L.S.I. 73.

10 The point is particularly important since, under Israel's constitutional law, the Prime Minister is not entitled to dismiss a Minister under any circumstance. Thus, until 1962 he could not even dismiss a Minister who had voted against the government, or whose parliamentary faction had so done.

11 In the ILP case: The State of Israel v. Minuter M. Kol and Minister G. Hausner (1977) (II) 31 P.D. 3. In the NRP case: Zalman Segal v. The Government of Israel, Dr. Y. Burg, Dr. Y. Rafael, Zevulun Hammer; Eliezer Steinlauf v. The Government of Israel, Y. Rabin, Prime Minister; Haim Stenger v. Y. Rabin, the Government of Israel, Dr. Y. Burg, Dr. Y. Rafael, Zevulun Hammer (1977) (II) 31 P.D. 8.

12 Mainly the interpretation of the words “on the day” which we read in sec. 11(g) of the Transition Law 1949. Berinson J. and Kahan J. both interpret these words as meaning “at the very moment” (of the announcement at the Knesset). This interpretation is not general but dependent on the subject matter.

13 The classic study of that form of government is that of Bastid, Paul, Le gouvernement d'Assemblée (Paris, 1956)Google Scholar; in English a sound analysis can be found in Verney, Douglas V., The Analysis of Political Systems (London, 1959)Google Scholar, especially chap. 4, “Convention Theory” 57–74.

14 First published in 1867. Our quotation is according to the World's Classics (London, Oxford University Press, 1958).

15 Bagehot's views are not now generally accepted. See, for instance, I. Jennings, op. cit. supra n. 5, at 328 (as regards the Crown's influence); Mackintosh, John P., The British Cabinet (2nd ed., 1969) especially 174.Google Scholar

16 Verney, op. cit., at 57–58.

17 According to Bastid, op. cit., the two major historical examples are those of Great Britain with the Long Parliament (1640–1660), and France with the Convention (Sept. 1792–Oct. 1795).

18 The examples which are generally given are those of Switzerland, see Bastid, op. cit., 225–304; but see the discussion in Jean François Aubert, Traité de droit constitutionnel Suisse (Neuchatel, 1967) vol. 2, pp. 455–456; Bastid also adds France during the 4th Republic (which is discussed in detail). Verney adds the communist régimes, but it seems irrelevant.

19 But it may of course always intervene through legislation even in government matters, unless such legislation would be repugnant to the Constitution of the country (if it has one). See, concerning those questions, the classical analysis of the parliamentary régimes, such as: Redslob, Robert, Die parlamentarische Regierung, in ihrer wahren und ihrer unechten Form (Tübingen, 1918)Google Scholar; Lalumière, Pierre et Demichel, André, Les régimes parlementaires européens (Paris, 1966)Google Scholar; Capitant, René, “Régimes parlementaires” in Mélanges Carré de Malberg (Paris, 1933) 33.Google Scholar

20 Which may be translated “despatch of current affairs”.

21 Which is like “caretaker government”.

22 The first decision of the Conseil d'Etat in that matter is that of 4 April 1952, Syndicat régional des Quotidiens d'Algérie—Rec. des Arrêts du Conseil d'Etat 210; see also the note of Waline, Marcel in (1962) Revue de droit public 1029Google Scholar; also M. Lachaze, “L'expédition des affaires courantes en période de crise ministérielle” Dalloz 1952 Chroniques 65; during the Fourth Republic, which was a time of ministerial instability, there were numerous decisions: see the commentary of Long, Weil, Braibant, , Les grands arrêts de la jurisprudence administrative (6th ed., Paris, 1974) 397.Google Scholar

23 Under sec. 8 of the Constitution “the President of the Republic nominates the Prime Minister”. One finds here the special character of the new parliamentary régime in France, which is a “Weimarian” form of parliament, i.e., combining Presidential régime with parliamentary régime.

24 Conseil d'Etat, 19 October 1962, Brocas, , Recueil des arrêts du Conseil d'Etat, 553Google Scholar; conclusions of the commissaire du gouvernement, Bernard, in (1962) Revue du droit public 1181; Laubadère, note in (1962) Actualité juridique—Droit administratif 612. See also a decision of 22 April 1966, Fédération nationale des Syndicats de police de France et d'Outre-mer, Recueil des arrêts du Conseil d'Etat, 274, and especially see the conclusions of the commissaire du gouvernement Galmot, in (1966) Actualité juridique—Droit administratif 355.Google Scholar

25 See the thorough study concerning the 4th Republic, by Bouyssou, Fernand, “L'introuvable notion d'affaires courantes: l'activité des gouvernements démissionnaires, sous la 4ème République” (1970) Revue Française de science politique 645.CrossRefGoogle Scholar

26 See the classical commentary of the Constitution by ProfessorSenelle, Robert, La Constitution belge commentée (Bruxelles, 1974) 225.Google Scholar See also Mast, A., Belgisch Grondwettelikk Recht (Bruxelles, 1976, in Flemish) 295.Google Scholar

27 Senelle, op. cit., 226.

28 Ligny (number 9932).

29 Jassogne (number 12951).

30 Sec the decisions cited by Mast, op. cit., 295, n. 2.

31 There is no provision in the constitution, but there is unanimous agreement on that point: see for instance Ruma, Biscaretti di, Diritto costituzionale (1958) 399Google Scholar; Pallieri, G. Balladore, Diritto costitutzionale (1965) 306Google Scholar; see also in Enciclopedia del diritto, voi. IX, under “Crisi di gabinetto” by Mario Galizia, p. 393, and vol. II under “Administrazione organi costituzionali”, by Leopoldo Elia, p. 220. One must bear in mind that due to the frequency and the length of the crisis in Italy the question is of great practical importance.

32 See the cases cited by Galizia, op. cit., 392, n. 26.

33 Which means that it could perhaps be assimilated to a “convention of the constitution” in British constitutional law which, as known, is unanimously recognised to be unenforceable before the Courts. See, for instance, Phillips, O. Hood, Constitutional and Administrative Law (London, 5th ed., 1977).Google Scholar

34 A large variety of those opinions is given by Elia, op. cit., 223 ff.

35 Mast, op. cit., 296; also Geisman, Georg, Politische Struktur und Regierungs-system in den Niederlanden (Frankfurt, 1964) 214.Google Scholar The question is particularly important in Holland since in this country a long period is generally needed to form a new government. Holland also makes use of the “transition government” as we have seen above. See Geisman, p. 190; the author speaks of “Intermezzo-cabinet” or “crisis cabinet”. Such a limited government functioned in Holland after the resignation of the cabinet in the middle of March 1977 until the elections of 25 May 1977, and even after, until the establishment of a new government.

36 This kind of solution, i.e., the entrusting of the outgoing government by the Head of State as “geschäftsfuhrende Regierung” or according to Austrian law as “einstweilige Regierung” was introduced in the Weimar Republic in 1930 (sec. 12 of the Reichsministergesetz). It provided: “Des Reichspresident kann das Ministerium mit der einstweiligen Fortführung der Geschäfte betrauen, wenn es um seine Entlassung nachsucht”. See the commentaries of Heilbrunn, O., “Rechte und Pflichte der geschäftsführende Regierung” (1932) 60 Archiv des öffentlichen Rechts N.F. 21, 385.Google Scholar The same solution is now to be found in the Basic Law of the Federal Republic of Germany of 1949, sec. 69(3).

37 Precisely in the case of Mr. Rabin's resignation. It was announced, on the day following its resignation that “during the intermediary period, the government will implement the former policy, as before its resignation”.

38 It is clear also that, politically, a government acting under sec. 25(a) should be most careful in its policy and not undertake steps which would not find support among the majority.

39 On this question, see Likhovski, , Israel's Parliament—The Law of the Knesset (Oxford, 1971) 138 ff.Google Scholar; Rubinstein, , The Constitutional Law of the State of Israel (2nd ed., 1973) 293, 307.Google Scholar

40 Ibid., at 139.

41 Advisory opinion delivered by the Attorney General, Prof. A. Barak, on 18 January 1976 under number 1/4/956.

42 The question arose in Israel once, in 1951. Moreover, at a time when the Government was acting as a “continuing” one. But, the question was not solved and it did not arise under the Basic Laws but under the Transition Law, 1949. See details on the controversy in Likhovski, op. cit., at 138 and Rubinstein, op. cit., at 307.

43 Likhovski, op. cit., at 139.

44 Ibid.

45 The conclusion we have reached here is also that of Rubinstein, op. cit., at 309. Yoram Aridor, M.K. proposed a Bill on 27 December 1976 (number 567), in order to add a provision to sec. 25 of Basic Law: The Government, which provides that: “The Knesset's resolutions are also binding on the continuing government under this section”. The word also refers to the fact that it is assumed by Aridor, M.K. that the Knesset's resolution is binding upon the established government.