COVID-19 and Courts Symposium: “Strategies of Avoidance” — The Israeli Supreme Court’s Failure to Respond to the COVID-19 Pandemic (Part 2)

COVID-19 and Courts Symposium: “Strategies of Avoidance” — The Israeli Supreme Court’s Failure to Respond to the COVID-19 Pandemic (Part 2)

Myssana Morany is an advocate and the Coordinator of Land and Planning Unit at Adalah – The Legal Center for Arab Minority Rights in Israel and principal author of Adalah’s report: Protecting Human Rights During a State of Emergency: The Supreme Court’s Role at the Beginning of the COVID-19 Crisis (forthcoming).

This symposium consists of a series of blogs authored by the different panelists of a webinar hosted by the International Commission of Jurists titled “COVID-19 and Courts: A Global Trend of Judicial Deference?

Part 1 of this blog outlined Israel’s executive dominated response to the civil emergency brought on COVID-19, concluding that this approach amounted to a flagrant violation of the separation of powers. In Part 2, I proceed to analyze in further detail the complicity of the Israeli Supreme Court in allowing executive responses which impinge on the separation of powers and encroach on human rights. 

The Response of the Israeli Supreme Court

Instead of addressing the novel issues raised during the public health emergency and embracing its role in protecting human rights and maintaining the rule of law, the Israeli Supreme Court has buried its head in the sand, shirking its judicial responsibility to provide effective remedies for violations of human rights.

During the first wave of the virus outbreak, which occurred roughly between March and August 2020, Adalah’s research shows that the Court rejected or dismissed a staggering 85 out of 88 petitions brought before it challenging State actions and omissions relating to the COVID-19 emergency responses, including those relating to regulations issued by the executive.

The Israeli Supreme Court refrained from ruling on fundamental questions pertaining to the regime of emergency regulations or to the executive’s conduct during the first period of the pandemic, including in response to petitions brought concerning: the state of emergency as a public health emergency that differed from a security-based emergency; the need for a separate declaration of emergency, as mandated by the Basic Law; and the government’s authority (and the limits thereof) to use emergency regulations once the Knesset had resumed.

In so doing, the Court adopted a number of avoidance strategies that are very familiar to those monitoring its jurisprudence, apparently in order to exempt itself from engaging in in-depth discussions and issuing decisions on fundamental questions of law. These strategies have included, for example, the rejection of petitions due to a change in their factual or normative bases, even when a change was not a substantial one that cured the violation. For example, one petition sought to have the Court order authorities to provide Palestinian Bedouin children with distance-learning tools. The Court dismissed the petition a month a half after its submission, justifying the dismissal on Israel’s announcement of a general return to schools under certain conditions. However, by proceeding in this manner, the Court ignored that fact that most Palestinian children from Bedouin villages would remain in their homes and not be able to resume in-person learning because of classroom overcrowding and their schools’ lack of resources to mitigate potential COVID-19 outbreaks.

Another strategy of avoidance used by the Court involved making repeated requests to State respondents to submit updates, usually about the progress of legislative proceedings, until such time the petitions became moot. For example, a petition challenging regulations which, in contravention of Israel’s Basic Law, prevented lawyers and families to visit Palestinian political prisoners was pending for more than a year before eventually being dismissed. The justices of the Court repeatedly asked the state to provide updates on the process to replace the emergency regulations with ordinary legislation through the Knesset, even after the expiration of the emergency regulations. In addition, even with regard to these dismissals, the Court refrained from offering guidance or defining a normative framework in order to provide general guidelines for exercising such emergency powers in the future. Such guidance could have been important, especially in light of the fact that the Court has repeatedly adopting a deferent approach which significantly limits the effectiveness of judicial review in real time.

Finally, the Supreme Court has also made extensive use of “threshold” jurisdictional grounds, arguing in particular that non-judicial proceedings – such as approaching the relevant government bodies directly with a letter notifying it of the grievances and requesting redress – had not been exhausted by petitioners. The Court also required that the relevant authorities be given a “reasonable” amount of time to respond to petitioners and their concerns, even when the emergency regulations the petitioners sought to challenge were imposed and enforced immediately. Since some petitions challenged temporary regulations and legislation, the use of the requirement to exhaust proceedings also appears to be a deliberate strategy of the Supreme Court to avoid issuing rulings that might contradict executive responses to COVID-19.

Indeed, in many instances, by the time these processes were exhausted to the Court’s satisfaction, the regulation or legislation in question would have likely expired leaving the Court without a case to answer and letting the state off the hook for incursion on human rights and the rule of law. This effectively rendered petitioning the court futile, as the Court simply refused to intervene in a rapidly-changing reality and failed to grant timely relief, making a mockery of the apparent availability of judicial mechanisms to challenge unlawful use of state power. The use of threshold grounds is likely to have a chilling effect on potential petitioners in the future, deterring them from even attempting to approach courts.

Continuing to set a Dangerous Precedent

The Israeli Supreme Court’s actions during the COVID-19 crisis have effectively turned the protection of human rights in times of emergency into a “no man’s land”, in which the executive has the final word in balancing the public interest with individual rights. The unavailability of judicial review, especially at a time in which judicial protection of rights is sorely needed, effectively granted the Israeli executive in particular free rein to issue emergency regulations at its sole discretion.

In its decision to dismiss the petition challenging the government’s authority to issue emergency regulations, the Court did note that the proper way to deal with the public health emergency such as the one brought on by COVID-19 is via primary legislation enacted by the legislature. This too sadly makes a mockery of the judicial role, because while acknowledging this, the Court did not intervene or prohibit the continued use of executive issued emergency regulations even after the Knesset and its committees had resumed functioning. Given the circumstances, the Knesset did ultimately enact the Coronavirus Law, which sketches only a formal framework to enable the continued use of the same powers exercised by the government, with relative ease, and transferring the authority to declare an emergency situation from the Parliament to the executive. The Coronavirus Law also created a system of retroactive parliamentary oversight of unilateral, executive action. Eventually, the Court approved of this law despite all its flaws and shortcomings.  

The conclusions and findings of Adalah’s analysis of the Supreme Court’s response to COVID-19 related cases are therefore consistent with much of the criticism that has been levelled at the Israeli Supreme Court’s judicial tradition over the years. The Court has shirked its obligation to protect human rights from the government intrusion through the use of emergency powers and security-based justifications. Even in the shadow of the unprecedented humanitarian crisis brought on by the  COVID-19 pandemic, and despite the civil nature of the crisis, the Court has still failed to conduct substantive and meaningful judicial review of executive action. The results speak for themselves, and provide yet another reason to question the effectiveness of the Israeli Supreme as an institution tasked with guarding the separation of powers, human rights and the rule of law.

* Both pieces are based on a soon to be published report by Adalah – The legal center for Arab Minority Rights in Israel, discussing the Role of the Israeli Supreme Court at the beginning of the COVD-19 Crisis. I would like to thank Laith Aqel for all of his help and useful comments.

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