Utilization of Emergency Regulations During Wartime
On 15.10.2023, we appealed (Hebrew) to the Attorney General, demanding that the government be directed not to use its authority to enact emergency regulations (תקש"ח), unless it is necessary due to a clear and immediate need arising from the state of emergency.
In the appeal, Attorney Gil Gan-Mor, Director of Civil and Social Rights Unit, highlighted that despite the current state of emergency, the Knesset is functioning and it is possible to advance legislation through the regular process and even through an expedited process. Therefore, there is no need to resort to undemocratic means such as emergency regulations.
What are emergency regulations?
Emergency regulations are a tool that the government can use to legislate or annul any law for a period of three months. This authority is intended for situations in which the Knesset cannot fulfill its role and pass laws or for immediate needs related to the emergency situation. However, experience teaches us that during emergency situations, the government tends to use it extensively and not necessarily in a mandatory manner (as seen, for example, during the period of the COVID-19 pandemic).
Why do emergency regulations undermine democracy?
The emergency regulations are, in fact, government legislation, hence they infringe upon the principle of separation of powers. In contrast to the legislative process in the Knesset, emergency regulations are immediately enacted without public debate. There is also a concern that, due to the emergency situation, extreme regulations might be promoted that excessively infringe on freedoms and rights or that this authority may be exploited for political purposes.
Why is there a need to limit the use of emergency regulations even now, during a state of emergency?
The State of Israel is under an emergency situation, facing one of its most challenging times. However, the Knesset convenes and functions, and the emergency situation does not prevent or undermine its ability to promote legislation or temporary regulations (emergency laws), even in an expedited process. Therefore, emergency regulations should only be used for needs directly arising from the fighting or to address immediate civilian needs.
What can be done if there is a need to pass urgent legislation during this period?
As mentioned, the Knesset functions as usual and can also pass urgent legislation through an expedited process, either as a law or as an emergency regulation.
How should the government behave?
As long as there is no need for emergency provisions related to warfare or for immediate civil needs arising from the current emergency situation, the government should refrain from using its authority to enact emergency regulations and work towards advancing legislation through the regular parliamentary process.
Certainly, there is no place for the installation of emergency regulations containing criminal sanctions against civilians. For example, there is no room to advance emergency regulations of the type proposed by the Minister of Communications regarding restrictions on communication devices.
If there is no alternative to the installation of emergency regulations, they should be limited to the shortest possible period, and afterward, if necessary, attempts should be made to pass them through the regular legislative process in the Knesset.