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The Coronavirus Law Does Not Solve Problems of Emergency Regulations

Photo by Tal Dahan, ACRI

On 4.6.2020, we sent comments to the Prime Minister’s Office’s Legal Advisor on a memorandum that authorized the government to enact secondary legislation to contend with the coronavirus crisis. On 22.6.2020, we sent our comments on the bill to the Constitution Law and Justice Committee, which are similar in principle.

The law was intended to replace use of emergency regulations, which violate the principle of separation of powers. Yet it does not resolve the issue, as it also violates the principle of the separation of powers, enabling the government, and sometimes even the prime minister alone, to make preliminary arrangements and infringe upon human rights.

There is currently a great need to restrict the government’s power, as it is unparalleled with regard to our governmental history. Typically, the attorney general and advisers acting on his or her behalf guide the government to act within legal bounds so as not to fail in disproportionately violating human rights. Yet the power of this institutional guarantee has been eroded in the face of attacks on the rule of law by senior officials in the executive branch and even by the Attorney General himself. Accordingly, the bill’s center of gravity should thus be shifted to the legislature rather than the executive.

An additional issue with the bill is what it lacks: the steps taken to contend with COVID-19 harm us all, yet particularly harmful violations have been caused to families with many children, people living in poverty or harsh, overcrowded living conditions, and the elderly who are not blessed with proximate caregiving families. ACRI is of the opinion that any decree or restriction imposed by the emergency legislation should be formulated and determined along with arrangements to provide basic solutions to the dire crisis, including creating a socioeconomic safety net that will ensure that no one is left behind through preventing the violation of human dignity.

Our Primary Comments Per Clauses of the Bill:

Clause 2(a) – Declaration of a state of emergency due to COVID-19: It must be stipulated that the authority to declare a state of emergency will be in the hands of the Knesset, in order to ensure checks and balances in Knesset oversight over the government, along with the participation of experts and the public in the legislative process. It should be stipulated that solely in urgent and extreme cases, when left with no choice, the government may declare a state of emergency on the condition that the Knesset ratify the declaration within seven days, without which it will expire.

Clause 2(d) – Duration and extension of the declaration: A minimal period of time must be determined for the declaration of a state of emergency, due to the extremity of the situation and the violation of rights involved. In this respect, prolonging a declaration will require frequent assessment of the situation on the ground, and the according means necessary to address it. It is thus proposed to stipulate the validity of the declaration for 30 days, and that extensions will span 14 days at a time.

Clauses 2(d) and 3(a) – Repealing the declaration of a state of emergency: It must be stipulated that the Knesset will decide whether to extend or repeal the state of emergency.

Clause 41 – Automatic declaration of a state of emergency once the law is enacted: This clause must be repealed. An emergency declaration must be made following an in-depth informed discussion, in consultation with all involved, regarding the situation on the ground and the need for a state of emergency, the necessary length of time, etc. The declaration may not be automatically enacted, and certainly not for a long period of 30 days.

Clause 4 – Authority to enact regulations: It must be stipulated that the Knesset will enact emergency regulations required by the state of emergency, to ensure the separation of powers and the Knesset’s oversight over the government, along with a transparent procedure and the participation of experts and the public. Solely in extreme situations will it be stipulated that the government may enact regulations approved by the Knesset within seven days, without which they will expire.

Clause 4(d): It must be stipulated that regulations require the approval of the committee, and that this stage may not be skipped to commence the plenum. The committee discussion is critical in allowing for in-depth study, transparency, and the participation of experts and the public.

Clause 5 – Bringing regulations to the public’s attention: Linguistic accessibility must be ensured in Arabic and any other language required per location and matter – Amharic, Tigrinya, Russian, etc.

Clauses 23-24 – Penalties: It must be determined that stipulation of criminal offenses in relation to the regulations will be conducted by the Knesset within the framework of primary legislation. The question of which violations of the regulations will be deemed criminal offenses for which a fine may be imposed is a clear preliminary arrangement that must be determined by the legislature. In this case, as noted above, the regulations reflect the initial arrangements themselves that should be deemed by the Knesset, and thus the penalty clause must also be determined accordingly. In any case, as the bill specifies the type of restrictions that may be stipulated, there is nothing preventing the according determination of criminal offenses.

Clause (23)(2): Alternatively, it must be stipulated that new offenses will solely be determined by the government following preliminary approval by the Knesset. As such, it must thus be stipulated that penal clauses will solely take effect following the Knesset’s approval of regulations.

Clauses 28-26 – Enforcement powers: This bill grants a sweeping package of powers that do not befit the enforcement of various types of restrictions. Suitable necessary enforcement powers must be established for each type of restriction and regulation (for instance, in the bill authority is not required to demand an ID to monitor use of public transportation).

Clauses 28(6) and 32(1)(d) – Use of force: The powers established are sweeping and disproportionate. Use of force is solely required for the purpose of enforcing very specific things (barring entry into a place, for example), and is not required in other cases (such as non-identification).

Clause 28(5): A basket clause providing that a police officer may ask any person to take “any other action” must be omitted.

Clause 33 – Obligation to identify authorized bodies: Due to the dynamic nature of restrictions and prohibitions that increase uncertainty and confusion, increased identification of authorized bodies must be mandated. Enforcement or supervisory bodies must be required to identify themselves and to clarify the reasons they are addressing citizens/residents, even without being asked to do so, and to permit the right to a hearing.

Defend the existence of demonstrations: It must be explicitly stipulated that restrictions on demonstrations and protest marches will be reduced to the minimum required, and determined by placing an emphasis on the maximum exercise of freedom of protest.

Socioeconomic safety net: It must be stipulated that alongside each decree, arrangements will be made to ensure basic solutions to the severe hardships that arise.

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