Who Will Investigate the Coronavirus Crisis?

| Written By:

There have been calls to investigate the government’s handling of the coronavirus crisis – but who should do the investigating?

Flash 90

While the panic surrounding the coronavirus is on the wane, the threat of a second wave still looms over our heads, and the financial crisis is still with us, and will be with us for some time. There have been various calls to investigate the government’s handling of the crisis, including on such issues as: how decisions were made; the justification for and the consequences of the policies chosen; the coordination among various agencies and their functioning during the crisis; the extent of preparedness for emergency scenarios; and the degree to which the health system geared up for dealing with such a situation. 

Should the management of the coronavirus crisis be investigated? And if so, by whom, and what should be its focus? Based on past experience, the crisis certainly warrants an inquiry on how it was managed, as well as recommendations for future conduct so as to avoid repeating mistakes and be better prepared for various emergency scenarios.

In what organizational framework should the investigation be conducted? 

This question has significant implications for the type of investigation to be conducted, the nature of its conclusions, and especially -- the status of its recommendations. The three main options are as follows:

a. The State Comptroller’s Office

The State Comptroller’s Office can examine the preparation for emergencies such as the coronavirus, of specific aspects of the functioning of the health system, and the functioning of the various bodies responsible for action during emergencies, and publish its findings as a special report. In fact, a special audit report (Hebrew) was already published on the health system’s lack of preparedness for an epidemic even before the coronavirus emerged. But given the report’s watered down text, the fact that the State Comptroller’s Office has no authority to enforce enactment of its recommendations, that its monitoring mechanisms are weak, and mainly- that public discourse attaches little importance to state audit reports, the publication of a state comptroller’s report seems unlikely to result in real action; nor will it provide ammunition to those looking for someone to blame. However, a State Comptroller’s report could pave the way for the establishment of a state commission of inquiry by the Knesset Control Committee.

b. The Government

State Commission of Inquiry: In the past, state commissions of inquiry have been established to investigate major fiascos or crises, such as the Agranat Commission after the Yom Kippur War, the Kahan Commission on the events of Sabra and Shatilla, and the Or Commission following the events of October 2000. A state commission of inquiry may be appointed by the government or (as noted above) by the Knesset Control Committee in response to a report from the State Comptroller’s Office. This type of commission is unique in that its members are appointed by the President of the Supreme Court. It operates autonomously, conducts semi-judicial proceedings and has the authority to require witnesses to appear before it, and provide any needed documents. The advantage of a state commission of inquiry lies first-- in the scope of the inquiry; second—in the established practice of its issuing recommendations that may be both on the individual and systemic levels, and finally in the fact that the government does not usually ignore such recommendations, particularly those relating to specific individuals.

However, governments do not usually appoint state commissions of inquiry out of their own volition; rather, they do so when they consider it to be an effective means of appeasing the public during times of crisis, such as after the murder of Prime Minister Rabin. In most cases, governments try to avoid launching such commissions, and only “give in” under strong public pressure. This was the case with the Landau Commission which investigated the General Security Service’s interrogation techniques, and with the Or Commission.

Even when there is significant public pressure, and public opinion demands the establishment of a commission of inquiry, governments usually prefer to set up a governmental commission of inquiry. This type of commission is appointed by the government or by one of its ministers, who also select its members. The Vinograd Commission following the Second Lebanon War is one such example. A commission of this type lacks the power to summon witnesses, demand the submission of documents, or impose sanctions.

The government is not obliged by law to accept the recommendations of any commission, but past experience shows that governments abide by the decisions of state commissions of inquiry, do not ignore the recommendations of governmental commissions of inquiry, but—by contrast- easily gloss over the recommendations of public commissions of inquiry.

c. The Knesset

As noted, one option is the Knesset’s establishment of a state commission of inquiry based on a decision of the State Control Committee, in the wake of a report from the State Comptroller’s Office. The Bejski Commission which investigated the regulation of bank stocks was appointed by the State Auditing Committee, as were the last three state commissions of inquiry appointed by the 17th Knesset (on the issues of aid for Holocaust survivors, Israel’s water supply, and the treatment of Israelis evacuated from their homes following the disengagement from Gaza). In fact, already in the midst of the crises the Knesset set up a special committee on how the coronavirus epidemic was handled. This committee, headed by MK Ofer Shelach, operated in a similar manner to a parliamentary commission of inquiry. It even published a report which included recommendations for preparing for another wave of the epidemic and for needed structural changes (such as the establishment of a National Crisis Authority). The committee’s work is worthy of praise in that it was carried out in the midst of a crisis; however, past experience shows that the recommendations of parliamentary commissions of inquiry are rarely implemented, with the exception of a few commissions that did indeed lead to real change. This is the case primarily because the Knesset does not effectively deploy the tools at its disposal for oversight, monitoring, and legislation in a way that would ensure implementation of recommendations.

Summing up

As the above review demonstrates, the commission with the broadest mandate for investigation, the highest legal standing, the most extensive powers, and the greatest autonomy, is the state commission of inquiry (see Table 1 below for a comparison with a parliamentary commission of inquiry).

Table 1. Comparison between state and parliamentary commissions of inquiry

  State commission of inquiry Parliamentary commission of inquiry
Legal basis Commissions of Inquiry Law, 1968 Basic Law: The Knesset, and the Knesset Rules of Procedure
Appointment By the government, or by the State Control Committee At the initiative of MKs , following a recommendation from a Knesset committee and with approval from the Knesset plenum
Subject of inquiry “Issues of essential public importance, requiring examination at a particular time” “To investigate matters defined by the Knesset”
Chairperson Supreme Court or District Court justice, serving or retired Member of Knesset (sometimes the chairperson of the committee that initiated the commission’s appointment )
Composition Members are appointed by the President of the Supreme Court Members of Knesset, in accordance with the representation of factions in the Knesset
Powers Entitled to summon and require any individual to appear before it and submit needed documents; to require witnesses to testify under oath; to take testimony abroad; to issue a search warrant; and to order collection of documents. The chairperson has powers equivalent to a court judge in civil proceedings. Equivalent to a Knesset committee: entitled to require state employees (but not private individuals) to appear before it, unless the relevant minister or head of the agency in question opposes this and commits to appearing in their stead.
Witnesses’ rights and obligations Witnesses have the same obligations as anyone under questioning in criminal proceedings. Witnesses at risk of incrimination from the inquiry or its outcomes, are informed of this by the commission, and are entitled to defend themselves. Anyone from the executive branch asked to testify is obligated to appear before the commission (unless their superior or the relevant minister appears in their stead), and must provide information to the committee, under specific limitations (such as when this may harm public security or contravene legally mandated confidentiality).
Sanctions The commission chairperson may impose fines on anyone who does not appear to testify, withholds documents, refuses to take an oath, or refuses to answer a question. Indictments may be issued against anyone who does not appear to testify without reasonable justification, carrying a penalty of two years’ imprisonment. Significant sanctions may be imposed by the Civil Service Commission or the office responsible for discipline in the relevant government agency (in cases in which the Knesset Speaker decides to file a complaint to these bodies on non-appearance of an individual summoned to appear).
Publicizing proceedings Deliberations and protocols of deliberations are public, except in special circumstances. Deliberations are public, though in special circumstances the commission is allowed to hold all or some parts of its deliberations behind closed doors.
Report Required to submit a report. All state commissions to date have submitted reports. Expected to submit a report detailing its activity and conclusions. In the past, not all parliamentary commissions have done so.

Based on past experience, it is likely that the deciding factor as to whether a commission of inquiry will be set up is public sentiment. If there is a feeling among the public that major debacles have taken place, the pressure to appoint a commission of inquiry will be such that the government will have to respond to it. But past experience also indicates that the Israeli public is mainly interested in the bottom line: How many victims did the war/epidemic claim, and who can be blamed for it? Seeing as the senior figures most directly involved in managing the crisis (the Minister of Health and the ministry’s Director-General) no longer hold these positions, even if the commission’s conclusions were not favorable to them, which is not at all certain, this would not result in their removal from office.

And so, more than anything, the answer to the question of whether a commission of inquiry will be set up depends on the public narrative on the management of the coronavirus epidemic. If this is a heroic narrative in which the tiny State of Israel succeeded, where stronger and more established countries failed, there will be no public or political pressure for launching a state commission of inquiry.. At the very most, a public commission will be set up, with no real authority or teeth, and will produce a report that will gather dust on ministerial bookshelves.

Furthermore, in light of the pitiful state of the opposition in the Knesset, there would seem to be no significant sources of pressure for the appointment of a state commission of inquiry. Moreover, there is no incentive for a thorough investigation that would identify the heads of the executive branch as being responsible for serious failures, and that might lead to the replacement of the newly formed government.

An alternative possibility is that the State Comptroller’s Office—as an independent entity with its own staff auditing expertise, and resources—will examine various aspects of the crisis and publish a major report, despite the discomfort this may cause the government. A state comptroller’s report could serve as the first step toward the appointment of a state commission of inquiry by the Knesset State Audit Committee, or at the least-might arouse and focus public discourse in a way that will promote action to l better prepare the country for future emergencies.

In any case, any commission of inquiry that may be set up should focus on the institutional and systemic aspects of the management of the coronavirus crisis, rather than seeking to identify guilty parties. Though the public and the media usually clamor for placing the blame on someone for major failings, for the good of the long-term public interest, it is more important to study the mistakes made in handling this most recent crisis—this, to ensure better functioning and management of future crises.