The Return to Balfour: Israel’s Supreme Court Strikes Down Coronavirus Regulations Curbing the Right to Protest

Israeli flags taken on June 12, 2013. (fabcom, https://flic.kr/p/eV6Ldj; CC BY-NC 2.0, https://creativecommons.org/licenses/by-nc/2.0/) On April 4, the Israeli High Court of Justice issued its judgment in National Responsibility v. Gov’t of Israel, the latest case in a series of legal challenges to controversial measures adopted by the Israeli government in response to the coronavirus pandemic. In March 2021 alone, the court issued three important judgments that ordered the state to significantly limit its contact-tracing surveillance program ( discussed previously in Lawfare and since discontinued), suspend legislation allowing for the transfer of personal data of nonvaccinated individuals from health care providers to municipal authorities, and remove travel quotas on the number of Israeli nationals eligible to enter the country. All three cases demonstrated the government’s excessive curtailing of individual rights and a flimsy factual basis used to support the restrictions’ necessity and proportionality. Few, if any, other democracies have taken such measures, and the court’s decisions in the three cases brought Israel back into the democratic fold. The April 4 judgment is different, in some respects, from the three earlier judgments. It dealt with a dilemma that other democracies have also confronted as part of their response to the coronavirus crisis—the question of whether to apply general limits on public gatherings to demonstrations. When viewed from that perspective, the Israeli government’s decision not to exempt public demonstrations from the second national lockdown (September-October 2020) is not wholly unreasonable or highly exceptional. Yet, like the other measures reviewed by the court in March, the court found that the necessity and proportionality of the measures were not firmly established; and it subsequently struck down the relevant regulations and restrictions. The Facts Before the Court The second wave of the coronavirus pandemic hit Israel hard in July 2020, and the public health situation deteriorated throughout the summer and fall (peaking at more than 9,000 new daily cases in late September 2020). The health crisis coincided with a prolonged political crisis, revolving around the corruption indictment and trial of Prime Minister Benjamin Netanyahu and his refusal to resign from office. This unusual political situation has generated a mass protest movement , involving large weekly rallies every Saturday night in front of the prime minister’s official residence on Balfour Street in Jerusalem, smaller weekly demonstrations in front of his private residence in Caesarea, and smaller protest vigils in hundreds of traffic junctures and bridges throughout the country. Political allies of the prime minister in the Knesset and in the media have alleged that the protests are undercutting the country’s efforts to effectively curb the spread of the pandemic in both direct and indirect ways. In addition to restricting mass gatherings without proper social distancing, they also allegedly complicate efforts to enforce bans on other gatherings, such as mass prayers or weddings. The prime minister’s supporters called therefore for the banning of all large gatherings, including the anti-Netanyahu protests. The main law that organized the government’s responses to the pandemic—the Special Powers for Addressing the Novel Coronavirus (Temporary Legislation) Law 2020 — included a specific exemption from lockdown decrees for individuals seeking to exercise their right to demonstrate. However, the dual challenges of a worsening public health situation and political antipathy toward the anti-Netanyahu rallies led to a rapid amendment of the Special Powers Law in late September 2020. The fall amendment authorized the government to declare a “special state of emergency” during which the special exemption granted to demonstrations under the original law would be suspended. Pursuant to such a declaration, regulations entered into force on Sept. 30, 2020, imposing a national lockdown and providing that demonstrations could take place only under the general terms of the lockdown (within 1,000 meters of the demononstrator’s place of residence and in groups of no more than 20 persons).  The Petitions Against the Special Powers Law The six petitions, addressed jointly by the court in the April 4 judgment, demanded that the court strike down the Special Powers Law in its entirety, or—at minimum—nullify the limits on regulations placed on the right to peacefully assemble. The allegations directed at the Special Powers Law focused mostly on its democratic shortcomings, which the petitioners claimed had to be considered in light of the extreme powers to limit the daily activities of individuals and businesses. Among these shortcomings, the petitioners—public interest nongovernmental organizations and concerned individuals—focused on the hasty manner in which the Special Powers Law was passed in July 2020, the conferral of authority to the government to declare states of emergency (under Israeli constitutional law, a state of emergency is typically declared by the Knesset), and the limited role of the Knesset in reviewing regulations enacted under the law. (Regulations were subject to a complex Knesset-Government co-decision mechanism, but could enter into force, in some cases and for limited periods of time, without Knesset approval.) The court rejected all of these arguments, noting that the legislation process was fast but still allowed for comprehensive deliberation and consequential revisions, the government’s power to declare a health emergency is not exceptional under Israeli law and is mitigated by the power of the Knesset to control extensions of the declaration beyond an initial 45-day period, and the provisions regulating the division of labor between the government and the Knesset—which allow the government in certain cases to approve temporary regulations without approval of the Knesset—are not unreasonable in light of the need for urgent action. Review of the Special Powers Law and the Regulations’ Provisions on Demonstrations The crux of the legal challenge to the Special Powers Law revolved around the provisions that limited demonstrations. The petitioners claimed that the September 2020 amendment and its regulations resulted in a disproportionate limit on the constitutional right to demonstrate (a right developed in the jurisprudence of the court by way of interpretation of Basic Law: Human Dignity and Liberty ) and were not adequately supported by facts. The petitioners also claimed that the ministers who passed the regulations were operating under a conflict of interest (limiting demonstrations directed against them) and that they adopted the regulations by a phone vote without proper consideration of their implications. Although the court had doubts about the constitutionality of the September amendment, the chief justice of the Supreme Court of Israel, Esther Hayut, who wrote the main opinion for the court, eventually accepted the state’s claim that judicial review should focus on the decision to restrict the right to demonstrate. In other words, the court should focus on the regulations limiting the right to demonstrate and not on the Special Powers Law that gave the government the authority to pass them. In reviewing the regulations, Hayut, speaking for the majority, rejected the government’s mootness claim. (The government alluded to the fact that the challenged regulations were no longer in force at the time of the hearing.) Hayut noted that since real-time judicial review of short-term measures in emergency situations is difficult to undertake, the court should provide guidance for future cases in which regulations of such a nature would be considered. She also noted that fines were imposed on an unknown number of demonstrators who violated the regulations, and that for them the case was certainly not moot. It is on this issue of mootness that one of the justices, Noam Solberg, dissented from the judgment as a whole. With respect to the petitioners’ claim that the government hastily adopted the regulations, Hayut agreed that the procedure was defective. In particular, Hayut cited the lack of documentation of serious deliberation among the ministers and that it was unclear what factual record was placed before the ministers when they voted by phone to approve the regulations. Hayut thought that striking down the regulations on process concerns was not justified, however, since the Knesset subsequently approved the regulations following a more robust deliberative process. On the merits of the regulations, Hayut sided with the state’s position that the numerical cap of 20 demonstrators found in the relevant regulation ( The Special Powers (Additional Restrictions and Provisions) Regulations 2020, Sec. 24 ) should be interpreted as referring to the number of demonstrators in each “capsule” at the location of the demonstration. This, in the government’s view, meant that no limit was impose
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