A state in emergency
Israel is in a perpetual state of emergency. This is not a security evaluation or a statement about people's state of mind. It is a legal fact. The legal state of emergency, which grants the government extensive, even Draconian, powers was declared on the establishment of the state and has never been revoked.
On the contrary - every year or six months the Knesset extends the state of emergency, thereby extending the validity of all legislation that derives from it.
"The state of emergency infringes on human rights in a way that violates the Basic Law on Human Dignity and Freedom," says the Association for Civil Rights in Israel (ACRI), which has been pushing for years for an end to the state of emergency.
In recent months, the government has been acting, almost without anyone noticing, to amend the legal code so that the emergency state could be called off. The moves were prompted by a petition ACRI submitted to the High Court of Justice six years ago.
The first law to be enacted by the Provisional Council of State, on the day Israel's independence was declared - the Law of Government and Justice Procedures - declared a permanent state of emergency. In 1996, the Basic Law on Government was amended: The Government, stipulates that the Knesset and cabinet are authorized to declare a state of emergency.
The Knesset is permitted, even without cabinet approval, to declare a state of emergency for up to a year, and to extend the state repeatedly. In special cases when the Knesset cannot convene, the cabinet may declare a state of emergency for a week, during which time the Knesset must convene to ratify the move.
According to the law, if the emergency does not enable listing the declaration in the official state record, the decision must be published "in another appropriate way."
The British Mandate is still here
Today, it is generally agreed that the state of emergency should be abolished. But it is not so simple. For years, laws dating from the British Mandate as well as newer ones have granted the government extensive powers in various areas. All these laws would be void if the state of emergency is abolished.
These include, for example, laws upholding emergency regulations regarding traveling abroad, the law to prevent infiltration, the law enabling the army to commandeer private property, the seafaring vessels law, the emergency laws for arrests, searches and land confiscation, the law supervising goods and services and the law prohibiting baking at night. Even the law regulating patents would be revoked.
In 1999, ACRI petitioned the High Court of Justice to revoke the Knesset's declaration of a state of emergency.
The court instructed the government to prepare a detailed work plan, including a timetable, to amend all the legislation conditional on the state of emergency so that it could continue to be valid if the state of emergency was ended.
"The State Prosecution must provide updated information about the legislative steps that have been taken and the estimated time required to advance and complete them," the judges ruled. The state estimated that it would take six months to complete the legislation.
Six years later there is still no work plan. During recent years the Knesset and its relevant committees - Foreign Affairs and Defense, Constitution, Law and Justice - have blasted the problematic legal situation. These bodies have had to debate the state of emergency before every Knesset vote on its extension.
"I think extending the state of emergency is disgraceful," then-MK Tamar Gozansky (Hadash), said in December 2000. "It's time the Knesset stops chewing what it is fed and rejects this anti-democratic legislation. If there really is a state of emergency, let them explain it to us, but they must not use regulations from the days of the Mandate."
Then-MK Nahum Langenthal (National Religious Party) said at the time, "The emergency regulations make no sense. For example, the prime minister or finance minster's right to stop TV broadcasts and appear on TV with some address to the nation, in the name of the emergency regulations, is unreasonable. There is no logic in it. Issues like the release of terrorists, state affairs, setting borders and what should be done with the Arab community should be openly anchored in the law, not in emergency regulations and acts taken under the cover of night.
Hurtful, harmful arrangements
The answer lies, therefore, in the Justice Ministry. Deputy Attorney General for Legislation Yehoshua Schoffman and his aides are wary of the immediate implication of replacing the old legislation with new laws. Unlike the existing laws, which are immune to High Court intervention, any new laws would be exposed to constitutional scrutiny under the basic laws.
The legislation that would replace the old laws would require the establishment of arrangements that infringe on human rights and might not withstand the test of the High Court of Justice.
Schoffman admitted as much in a Knesset discussion. "If we take the anti-terror order and erase the emergency clause, it would constitute new legislation subject to constitutional scrutiny," he said.
"The government fears that amending legislation whose validity depends on the emergency state would open the way to examining these laws in light of the Basic Law on Human Dignity and Freedom, while older laws would be immune to this scrutiny," says attorney Dan Yakir of ACRI. Yakir says that this consideration, which is the only reason for the government's repeated extension of the state of emergency, is invalid, improper and inappropriate.
The intifada that erupted in 2000 provided the state prosecutor with a convenient excuse for not canceling the state of emergency. In the last debate on the petition nine months ago, the head of the Prosecution's department for High Court petitions, attorney Osnat Mendel, said, "The present security situation does not permit canceling the state of emergency."
This did not impress Supreme Court Justice Dorit Beinisch. "Since 1999, you repeat yourself like a broken record," she told the prosecutor. "But you have not shown a hint of anything new. This is unacceptable."
At the end of the hearing the court gave the state yet another six months to detail the legislation it would have enacted to enable the revocation of the state of emergency. The document the state submitted to the court a few weeks ago indicates that the state has stepped up its pace, but the end is still far from sight.
Here are a few examples of measures the state has taken:
In October 2004, the Defense Ministry distributed a memorandum about amending the law for commandeering equipment by the IDF. The current law, which is in effect only if a state of emergency has been declared, permits the IDF to commandeer private property, such as automobiles. The amendment would make the law independent of the emergency declaration. The ministry intends to present the proposal to the ministerial committee on legislation for approval.
The transportation and justice ministries are drafting an amendment to sever the law on supervising seafaring vessels from the state of emergency. The law enables the transportation minister to instruct the owners of vessels to sail to various destinations, or to load or unload merchandise. This proposal has already passed its first Knesset reading and is being prepared for second and third readings. In addition, two memorandums on additional amendments have been distributed for comment.
An entire chapter in the patent regulations deals with the authority bestowed on the defense minister in a state of emergency. The Justice Ministry has prepared a bill to replace this chapter which has already passed a first reading in the Knesset and is being considered by the Constitution, Law and Justice Committee.
New legislation covering the emergency regulations for ensuring vital economic services is being prepared. A memorandum on the amendment was distributed in November 2004.
The law dealing with annual vacations stipulates that in an emergency, the labor minister may postpone leave for some or all the workers. The Industry, Trade and Labor Ministry distributed a proposed amendment in November 2004.
The Work and Rest Law stipulates that the labor minister may allow workers to work overtime beyond the hours permitted by law during a state of emergency. The government agreed to sever this law from the declaration of a state of emergency, but a proposal has not been submitted yet.
"All that is being done is being done too slow, too little and too late," Yakir wrote the High Court in reply to the state's announcement.
"A period of more than five years to prepare these bills is unacceptable and inappropriate."
Yakir notes that in September 2000, the state estimated that the legislation would be completed within half a year, but this too turned out to be wrong.
This time the High Court decided to spur the state to pick up its pace. They scheduled another hearing on the ACRI petition for December.
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