High Court Strikes Down Public Security Minister's Order to Withhold Vaccines From Prisoners

Josh Breiner
Josh Breiner
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Public Security Minister Amir Ohana at the Tel Aviv District Court, December 8, 2020.
Public Security Minister Amir Ohana at the Tel Aviv District Court, December 8, 2020.Credit: Moti Kimche
Josh Breiner
Josh Breiner

Three Supreme Court justices harshly reprimanded Public Security Minister Amir Ohana following an instruction he gave the Prison Service to refrain from vaccinating prisoners.

The judges said Ohana had no authority to do so and that the instruction had no legal validity. Justice Menachem Mazuz assailed Ohana for telling Attorney General Avichai Mendelblit that if he wanted to change Ohana’s decision he could run for the next Knesset.

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“The respondent (Ohana) was not lawfully authorized to deny or delay medical treatment and his instruction was given with a patent absence of authority and in contravention of the law, making it juridically invalid,” wrote Mazuz.

He added that Ohana’s letter was “a rankling act of defiance, pointing to a total misconception in the way the respondent perceives his role and authority. The public security minister has no authority to instruct the Prison Service commissioner to refrain from administering medical treatment to a prisoner or detainee, just as he is unauthorized to instruct the police commissioner or the head of the police investigative department to abstain from a criminal investigation or to open one. The fact that the respondent is an elected official does not give him the authority to act as he pleases, in violation of the law, or to violate human rights by instructing the Prison Service to act illegally. It’s unfortunate to have to say something so obvious.”

Public Security Minister (then-Justice Minister) Amir Ohana and Attorney General Avichai Mendelblit at an Israeli Bar Association event, Tel Aviv, November 4, 2019. Credit: Moti Milrod

These words are included in a ruling given by the judges following petitions filed by several human rights organizations, which responded to Ohana’s decision to instruct Prison Service Commissioner Katy Perry not to vaccinate prisoners or detainees until she receives an order from him to do so, in contrast to the position taken by the Health Ministry, which considered prisoners to be of high priority for receiving the vaccine.

Following the submission of these petitions, the attorney general refused to represent Ohana’s position. This was presented by state prosecutors independently of the state’s position, which was that the Prison Service should vaccinate prisoners according to Health Ministry guidelines, despite Ohana’s position. On the eve of the hearing, the Prison Service started vaccinating prisoners belatedly. Within three days, 75 percent of all prisoners were vaccinated.

Ayalon Prison, Ramle, March 2020. Credit: Ilan Assayag

The other two judges on the panel, Justice Noam Sohlberg and Justice Daphne Barak-Erez, also determined that Ohana had acted without authorization and that he was entitled to receive separate legal representation, since the attorney general was the “authorized interpreter” of the law.

“We have learned from Hebraic law, from natural morality and from Israeli law that the withholding of a vaccine cannot be a punitive measure,” wrote Sohlberg. “One cannot distinguish between people who are behind bars, whose freedom has been taken from them due to their evil deeds, and law-abiding people on the outside; they are equally entitled to a vaccine against the coronavirus, according to professionally determined priorities at the Health Ministry. … The order was given without legal authorization. The authority lies with the health minister, not the public security minister,” he wrote.

Barak-Erez added: “The conditions of incarceration are characterized, even in the best case, by relative overcrowding and by enforced dwelling in closed spaces. This requires even more care in vaccinating prisoners. The professional authority to make decisions regarding prisoners’ health is not a matter of ‘policy’ within the realm of public security. Ultimately, this case revolves around the basic human right of every prisoner to have his life protected. Based on the stipulation of the Basic Law regarding human freedom and dignity, even someone whose freedom has been denied still needs to be granted his dignity.”

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