By Aeyal Gross
Facing the novel Coronavirus, Israel adopted a series of legal measures that have restricted various human rights both directly and indirectly.
The earliest restrictions — requirements established in February for people returning from abroad to isolate — were, in March, gradually broadened to restrict freedom of movement within Israel, ranging from a general lockdown, which at its peak restricted any outing to walking or exercising only within 100 meters of one’s home, except for specific purposes, to cordon sanitaire for areas with bigger outbreaks, which prohibited movement into and out of those regions.
The various restrictions created severe limitations not only on the right to freedom of movement itself, but also on family life, freedom of assembly, and freedom of religion.
The lockdown was eased gradually from mid-April with various measures, including the re-opening of all shops and schools.
While going to work was a permitted exception to the lockdown (and many worked from home), other regulations restricted the number of workers allowed in workplaces. This, in addition to the closing off of whole sectors (e.g., the entertainment industry), restricted the right to work for many, as well as the right to an adequate standard of living. Within a few weeks unemployment rate (including workers put on unpaid leave) jumped from a record low of 3.5 percent to a record high of 25 percent.
The government came up with support programs for people put on unpaid leave and for self-employed people who lost their income, but some have criticized these programs both for the scope of support given and the efficiency of delivery. Additionally, they offered no solution to asylum seekers and migrant workers who were put on leave or lost their jobs but are not entitled to income support or unemployment payments.
The closing off of schools affected access to education. And postponement of non-urgent medical treatment created restrictions on access to health care – thus limiting the right to health.
In addition to the various rights restricted because of the lockdown, the right to privacy was severely limited by contact tracing of COVID-19 patients. Contact tracing is being done by the country’s General Security Services based on their experience in detecting people considered a security threat to the state – mostly Palestinians.
The use of the GSS was only one facet of the securitization of the way Israel handled the pandemic: alongside the GSS the army and the Mossad were also involved. The governmental body managing the situation was the Council of National Security and not any health oriented body. Prime Minister Netanyahu often used the metaphors of “war” and “enemy” to describe the fight against COVID-19.
Beyond the specific violations of rights, it is important to note that the executive used the COVID-19 crisis to limit the work of other branches of government. An order from the Minister of Justice shifted the legal system to an emergency operation mode. Some have suggested this was done in the interest of postponing the opening of Netanyahu’s corruption trial, which had been scheduled to open on March 17th (and since opened on May 24th).
The outgoing speaker of the parliament relied on social distancing rules (even if the regulations did not apply directly to the legislature) as an excuse not to start the operation of the newly elected parliament and its committees, an issue that was eventually solved, but only after a court petition.
And the COVID-19 crisis was cited by Netanyahu and his main rival, Benny Gantz, to justify an emergency power-sharing “national unity” coalition, which they formed in May, amending Basic Law: The Government (the Basic Laws are Israel’s equivalent to a constitution) to allow for a two headed cabinet with rotating prime ministers. The forming of this coalition under the guise of COVID-19 was an excuse for constitutional reform and for a coalition agreement which concentrates power in the hand of the new grand coalition, limiting the power of the opposition (for example, by denying it its traditional share of committee chairmanships in parliament). A petition challenging the new coalition agreement was rejected by the Supreme Court.
The measures described so far were mostly instituted through emergency regulations issued by the government’s power (entrenched in Basic Law: The Government) to issue such regulations at emergency times. There was no need to declare an emergency: Israel declared an emergency upon being founded in 1948 and this has been extended every year since.
The second most prevalent tool used for some measures, such as quarantine, were orders made by the authority granted to the Ministry of Health under the 1940 Public Health Ordinance, a piece of legislation dating back to the time of the British Mandate which gives the Ministry expansive authority to take measures to contain infectious diseases.
Some issues affecting budgetary issues and criminal procedure were handled with by primary legislation and Basic Law : The State Economy was amended to allow budgetary measures needed for the corona crisis.
Many of the measures taken by the government were challenged at court, with the Israeli Supreme Court to date handing out about 30 COVID-19 judgments.
The only judgment where the Court intervened was one where it held that the government’s decision to use the GSS for cellular contact tracing could fall under the GSS’s statutory mandate, which includes state interests essential for national security, as this should be interpreted to include severe and immediate dangers to the citizens and the residents of the state. However the court held that while the immediacy requirement justified the government’s original decision, prolonging it would require primary legislation (a proposal for which the government thus submitted, as temporary legislation valid for three months, on May 19).
All other petitions were rejected by the Court. Among the petitions rejected was one arguing that Bedouins populations were discriminated against in the allocation of COVID-19 testing centers and one against restrictions on holding religious services in public.
In another case, the court upheld the emergency regulation closing off for six days a city where the COVID-19 outbreak was especially severe. Supreme Court Justice Amit described the situation where basic constitutional rights such as privacy, property, freedom of vocation, and of movement were violated as a “dystopic nightmare” in a democracy, but held that the restrictions on freedom of movement and other rights were justified and proportional under Israeli constitutional law, given the need to protect the rights to life and bodily integrity.
Notably, the Court here used the metaphor of horizontal balancing between different rights, rather than vertical balancing between rights and public health policy. This is problematic, because when general government public policy is re-articulated as “rights,” as has been done previously in Israeli court pronouncements in security matters, it upsets the constitutional structure of balancing individual rights vs. collective interests, in a way that may be used to further justify restrictions on rights in the name of public health. We can thus regard this legal discourse, alongside the political discourse about fighting the virus as a “war” against an “enemy,” the involvement of the security bodies, and the use of emergency powers – as all pointing to the securitization of the COVID-19 crisis in Israel.
This raises questions about whether the COVID-19 crisis will serve as a catalyst to establish more state surveillance of citizens.
Another prime concern relates to the way Netanyahu has used the crisis to entrench his power and continue his tenure as Prime Minister in the new political coalition.
Indeed, Netayahu’s creation of an “emergency” government that will protect his power, in spite of losing his majority in parliament, has spurred public suspicion about whether his description of the situation as an emergency, use of militarized language, and imposition of a broad lockdown, were all done out of medical necessity or of political opportunism.
Two pending Supreme Court cases may serve as platforms to discuss the questions of the rule of law which these developments bring up: one demands, in the name of transparency about decision-making, publication of the protocols of government meetings where the various decisions regarding measures taken to contain the virus were approved, and the second challenges the government continued use of emergency regulations (rather than primary legislation) in regard to COVID-19.
Postscript: After this post went to print, on May 28 the Israeli government published a draft for a new bill that is supposed to authorize the government, by way of specific primary legislation, to issue regulations that will allow restriction of activity in the public and private spheres for the purpose of containing the novel coronavirus. The proposed statute will authorize the government to declare an emergency situation for coping with the coronavirus – rather than relying on the general emergency situation – for a period of 45 days, extendable for further periods of 30 days each. Once such a declaration is made, the government can issue regulations on a variety of issues listed in the proposed statute, such as restrictions on movement, social distancing, public gathering, activity in workplaces, education, and more. These regulations are supposed to replace the major emergency regulations issued under the government’s general authority. Under the proposal, the new statute is supposed to expire on March 31, 2021.
Aeyal Gross is Professor of International and Constitutional Law at Tel-Aviv University’s Faculty of Law. He is also Visiting Professor of Law at SOAS, University of London.
Photo of masked statue of Meir Dizengoff, the first Mayor of Tel Aviv, courtesy of Aeyal Gross.