Joint List, Adalah petition Israeli Supreme Court against government’s continuous approval of emergency coronavirus regulations without Knesset oversight

06/04/2020

Adalah and the Joint List charge that approval of emergency regulations exceeds government's authority as defined in The Basic Law: Government, especially as the Knesset began its activities.

UPDATED 7 APRIL 2020

Today, 7 April 2020, Adalah filed a motion to the Israeli Supreme Court requesting an interim injunction, an order to show cause (“order nisi”) and an urgent hearing in petition submitted on behalf of the Joint List on 5 April. In this case, Adalah and the Joint List are seeking to stop the government’s approval of Emergency Regulations relating to the coronavirus as they are being decreed without the involvement of the Knesset and thus without authority and in violation of the Basic Law: The Government (HCJ 2399/20 Adalah and the Joint List v. The Prime Minister).

Immediately after the filing of HCJ 2399/20, the Supreme Court gave the state 14 days to respond. However, on 6 April, the Attorney General wrote to the Prime Minister stating that in his view there are constitutional problems with the government’s continuous approval of Emergency Regulations regarding the coronavirus, and it contradicts the rule the law. In light of the AG’s position and the facts and legal analysis of the issues as presented in Adalah’s petition, Adalah argued in its motion that irreversible damage will be done by the executive by curbing the legislative process, to the public, to the rule of law and to the principle of separation of powers.

Adalah commented:

"We have already filed three petitions challenging the government's authority to decree Emergency Regulations, which we also found to be sweeping and a disproportionate violation of human rights. In addition, the government appears to be approving many Emergency Regulations in a variety of areas that, above all, are unjustified, especially when the Knesset has begun its operations. It is precisely in times of crisis that there is an urgent need to adhere to the principles of separation of powers and the rule of law, when civil and human are in particular danger."

ORIGINAL PRESS RELEASE

Adalah - The Legal Center for Arab Minority Rights in Israel filed a petition on 5 April 2020 in its own name and on behalf of the Joint List against Prime Minister Netanyahu for the continuous approval of emergency regulations regarding the coronavirus epidemic.

The petition, submitted by Adalah attorneys Suhad Bishara and Dr. Hassan Jabareen, argued that the government's actions are being carried out without legal authority, contrary to the provisions of The Basic Law: The Government, and seriously violate the principle of separation of powers and the rule of law. The declaration of a state of emergency, which has been in place in Israel since 1948 and is renewed annually, relates strictly to security matters, and no special emergency was declared specifically for the coronavirus epidemic. Moreover, as the 23^rd Knesset began to operate 26 March 2020, there is no obstacle for the legislature to exercise its legislative authority.

Adalah and the Joint List filed this case following an earlier petition submitted two weeks ago (18 March) challenging the government’s authority to approve emergency regulations, which authorize the police and the Shin Bet use of tracking and monitoring of citizens – both coronavirus patients and the location of persons who were in the vicinity of individuals with a positive lab result for the virus – through various technological means, including cellphone surveillance. That petition is still pending, with no decision yet by the Court regarding the government’s authority to approve Emergency Regulations, as such. (See HCJ 2141/20, Adalah and the Joint List v. The Prime Minister, et. al)

The court’s position concerning the first petition, including a temporary injunction that it issued limiting these surveillance practices, and the Knesset's stance on the issue, strengthen the arguments about the constitutional difficulties that arise in the case of Emergency Regulations. According to the Joint List and Adalah, after the legal saga that delayed the convening of the Knesset Committees, there is no impediment for the Knesset to exercise its authority to both examine the validity of the emergency situation and to enact primary legislation, as needed.

Adalah comments that:

"For about three weeks now, an unregulated, caretaker, temporary government has been operating in Israel, as if it were a single ruler in a totalitarian state. It is inconceivable that the state of emergency declared immediately upon the establishment of the state can serve as source of authority for the government, even in civil contexts, as the coronavirus epidemic. The government’s proclamation of Emergency Regulations completely abolishes the separation of powers, and allows it do whatever it, alone, determines. Dozens of Emergency Regulations have already been approved in this way, covering a wide range of issues, some of which grossly and disproportionately harm basic civil liberties. Israeli law defines the Knesset as the sovereign authority, and the Supreme Court must act now to stop this flood of regulations and restore powers to the Knesset."

Member of Knesset (MK) Ayman Odeh, the Chairman of the Joint List added:

"The government cannot wage war on the separation of powers and democratic principles as the public struggles with the coronavirus. We are all in an emergency, and that is precisely why action must be taken by a majority of the Knesset representing the entire public."

Case Citation: HCJ 2399/20, Adalah and the Joint List v. The Prime Minister (case pending)

CLICK HERE to read the petition [Hebrew]