On the eve of the Shavuot holiday and by the demand of the High Court of Justice and the attorney general, the Israeli government released a memorandum of a bill designed to enshrine into law emergency regulations to battle the coronavirus pandemic. The purpose of such legislation is to allow the legislature to curtail our liberties and oversee the government's actions, but the memorandum fails to do the latter.
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The government has invited responses on the memorandum by Monday initially, a deadline that seems like underhanded opportunism. It was later changed to Thursday at the request of Justice Minister Avi Nissenkorn of Kahol Lavan.
It is unclear whether relevant bodies were consulted before the memorandum was published, like the Israel Medical Association or the Israeli Association of Public Health Physicians. The explanation for the memorandum flies the flag for human rights that have been at risk of infringement during Israel's struggle to stem the coronavirus. But it is the very existence of this legislative initiative that creates the sense that these rights are being disregarded. Israel's success in beating the virus depends on the public's trust in the regime waging the battle, but such legislation may harm that trust.
The proposed draft bill suggests a temporary measure that would be in place for 10 months. It would authorize the government to approve regulations similar to emergency regulations, and therefore doesn’t appear to be a significant transition from secondary legislation to primary legislation.
The government’s powers would be stipulated by a state of emergency declaration that would last 45 days and could be extended. This arrangement will supposedly improve things, replacing emergency regulations that expire after three months. However, assuming the government extends these regulations, it would virtually be an attempt to create an emergency arrangement that could be in effect for up to 10 months.
The bill would authorize the government to approve regulations couched in very sparse language, while insufficiently enshrining into law the required principles for legislation that is supposed to provide the public with detailed content. For instance, the memorandum doesn’t mention the decision-making mechanism for dealing with the coronavirus crisis, including who would be consulted on the matter. Thus, the proposed bill would allow chaos to prevail.
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The purpose of the regulations is extremely broad: “To prevent contagion, limit the virus' spread and the incidence of illness, as well as protecting at-risk populations.”
This approach is erroneous as there should be a distinction between primary and secondary goals. The primary goals include protecting the at-risk populations and preventing hospitals from being so overwhelmed with patients that they cannot provide treatment. Preventing contagion and limiting the spread of the disease are secondary goals, whose purpose is to achieve the primary goal. Without this distinction, we will continue to see disregard of problems and of the danger posed to at-risk populations such as elderly people residing in nursing homes.
At the same time, we would continue witnessing absurd regulations, imposing far tougher limitations than needed on the freedom of movement and freedom of employment. Many experts believe that the solution lies in maintaining social distancing and good hygiene while preventing large gatherings.
Therefore, some restrictions may be excessive, like limiting Israelis to stay within a certain distance from their homes, curtailing presence in places that are good for one’s health such as gardens, parks, and beaches, restricting business and cultural activities as well as events and reducing public transportation.
The proposed bill doesn't stop at what is required, and neither would the regulations it would stipulate if passed. From this perspective, the bill conveys disregard for the most important of human rights. It pays lip service to the fundamental right to protest but doesn’t offer arrangements that would allow large and safe protests to take place during a pandemic.
Reading the bill memorandum reveals that lessons were not learned from the steps taken so far. There's no mention of testing and of the epidemiological investigations required to trace those who came into contact with a confirmed coronavirus patient. In addition, the memorandum ignores the requirement to possess and provide protective equipment for those exposed to confirmed or suspected cases, while the need to investigate infection chains to draw conclusions is also overlooked.
Furthermore, the bill would allow the government to refrain from declaring a state of emergency for 45 days after it is enshrined into law, thus facilitating legislative processes. As opposed to standard legislation, there would be no need for approval by a Knesset committee on regulations that carry penalties for noncompliance. The difficult step of declaring an area restricted, in other words imposing a lockdown, is not subject to scrutiny or clearly defined criteria.
The bill does show awareness of the obligation to inform the public about new regulations in an accessible manner. But there is no mention of publishing the regulations in languages other than Hebrew, or of the need to reach people who may encounter difficulties with internet access. The government is not required to explain to the public the logic behind the regulations, perhaps because sometimes there is none. Neither is the government required to provide informative updates on the changing infection and mortality rates.
The bill proposes giving widespread supervisory and enforcement powers to inspectors who are not police officers, the nature of whose training for this work is unclear. That is a recipe for trouble. The bill also proposes to authorize police officers “to instruct a person to carry out a different action required to follow the regulations.” It is unreasonable that a police officer be granted such undefined authority, which treats citizens like subjects.
Nevertheless, the bill also contains positive change, like the need for a special declaration of a heath emergency. So far, the government has acted as if a health emergency was declared based on regulations that apply to a security emergency.
The bill states a health emergency could be declared only once a reasonable risk to public health exists. But this condition leaves too much room to maneuver. The conditions under which our rights can be curtailed must be made clear.
The challenge the Knesset is currently facing is to hold a thorough and in-depth deliberation on the proposed bill that puts to the test the state's approach to human rights. The memorandum has failed this test, and it must be sent back to the drawing board.