The proposed bill, which is slated to replace the existing emergency regulations, limits Knesset oversight - the very reason this 'primary legislation' is so necessary.
In light of the very limited time we were given to review the proposed text of the bill, for now we relate mainly to the proposed model, the overall process of enacting regulations, and especially to the issue of enforcement.
In our view, the proposed model, empowering the Government to enact broad regulations without the need for Knesset approval—neither for declaring a state of emergency nor for the regulations themselves—distorts the bill’s purpose, which is to replace the emergency regulations with “primary legislation”. This, in light of the fact that according to the proposed text, the only result of the legislation would be to grant the Government exceedingly broad discretion with regard to the declaration of a state of emergency and the scope of the infringement of human rights which it would sanction. None of the powers granted to the Government would require the approval of the Knesset or of the Knesset House Committee. It thus seems that the true purpose of this draft is to authorize the Government to go ahead and re-enact all the regulations it has declared in the last few months. Nowhere does the text relate to the lessons learned or to the problems that arose in enacting regulations during those months. In effect, the bill would merely preserve and prolong the current situation, under the guise of a change—despite the fact that now is the appropriate time for rethinking the issue. Clearly the Knesset should be given a more substantial role in regulating the powers, as we will explain below. This is imperative, given the serious infringement of human rights that the proposed law would sanction.
We wish to protest the way in which the draft bill was published, on Thursday afternoon, May 28—the eve of the Shavuot holiday with the deadline for submitting comments set as Monday, June 1. … The Justice Minister acted wisely when he extended the deadline by several days—but this should have been done from the outset.
Is the bill really an enabling act through primary legislation?
We believe that anchoring the special powers that stem from the coronavirus pandemic in primary legislation is desirable, and from a constitutional perspective-essential.
The question is: Does the draft bill satisfy the need it seeks to fill. As we see it, as currently phrased it fails to meet with this standard.. In effect, it seeks to once again grant the Government, the authority to enact regulations similar to the emergency regulations instituted during the “first wave” of the pandemic—and this time-for a period of up to 10 months.
If passed by the Knesset, the bill would indeed become primary legislation. And yes, it does define the powers to be granted and the limits imposed on them. But the boundaries it sets to the authorities’ discretion are few and feeble, and its very general language would sanction grave infringements of fundamental human rights in every area of our lives. … The decision to declare a state of emergency, the institution of restrictions, along with their scale, duration, and so forth, would be left exclusively in the hands of the Government. The Knesset would be deprived of its most important power—the power to regulate by legislation, a critically significant matter; that is, to determine, on behalf of the citizenry, the complex and delicate balance between the public community health interest, and our individual human rights.
The law should stipulate that when the Government requests the Knesset House Committee to approve a new order or regulation, it must also publicize the various alternatives that were considered, the concrete costs and benefits anticipated from the restrictions or from the powers vested in the Government by the regulations, and the infringements of human rights to which they open the door.
Declaration of a State of Emergency
The declaration of a state of emergency, provided for by §2 of the bill, is conditional on there being “a high probability of the spread of the coronavirus at a level that threatens public health.” We believe that the nature and severity of the threat should be defined more precisely and narrowly.
We question the need for the stipulation in §18 (“transitional provisions”) that the law’s passage is tantamount to the declaration of a state of emergency, as provided in §2, for a period of 45 days (starting from the day the law comes into effect).
The power to enact regulations and the procedure for doing so
§3 deals with the power to enact regulations. The conditions under which the Government may do so are phrased in extremely broad terms: “If it is convinced that this is required in order to prevent infection by the virus, to contain its spread, or to protect populations at risk.” The grounds for enacting regulations should be limited to preventing widespread contagion by the virus, protecting populations at risk, and protecting the healthcare system from a severe blow to its functioning as a result of the spread of the virus. …
The text is silent about the procedure to be followed by the Government when it enacts regulations. … The law must define a procedure for the enactment of regulations by the Government, including consultations among its members—so that all the ministers voting on the regulations are fully aware of all its implications and can be active participants in the deliberations, and given the opportunity to offer objections and propose alternatives.
Consideration should be given to the establishment of a public advisory committee, composed of experts and representatives of the public, headed by a physician who specializes in public health and with experience in making decisions of this nature. The committee would enjoy real-time access to all relevant information and could serve as a review panel in order to ensure the public’s trust in the process. …
A comment on the concept of a “restricted zone”
§10 of the draft bill includes a series of limitations to be applied to an area that is declared a “restricted zone.” … It is not appropriate for the default to be that the declaration of a restricted zone automatically imposes a long series of limits, while authorizing the ministerial committee to permit “leniencies” at its discretion. The default should be precisely the opposite: In each specific case, the ministerial committee should have to decide, on the basis of the relevant information and data, what specific limits are absolutely essential for achieving the goals of the quarantine. By no means whatsoever, should it be able to impose limits that are not essential.
§11 grants the Government the power to use the regulations to define a criminal offense without the Knesset's approval, contrary to §2(b) of the Penal Law. We see no reason to deviate from the limit set there. At least with regard to penal legislation, it should go without saying that the regulations require advance ratification by a Committee of the Knesset. …
The draft bill declares that “because it is not possible to connect the authority required for enforcing a particular provision in the law itself, as was done in the state of emergency regulations, it is proposed to anchor in primary legislation “sets” of powers to permit monitoring and enforcing the various provisions of the regulations, in keeping with the types of the regulations that are defined in the law.” But even if there is a willingness to permit the Government to issue regulations that define the specific powers to be granted to the enforcement agencies in order to impose the concrete restrictions decide on, the “set” still needs to be much more detailed and specific. … Accordingly, the concrete grounds and rationale for justifying the implementation of each specific power must be anchored in the law itself, and not left for an ad hoc decision by the Government, under the pressure of time in an emergency.
The power granted by §12(d) (2) to obtain “any information” from an individual, as per §12 of the draft bill is much too broad….
As for powers granted by §12(d)(3), we believe that there is no justification for the law to give police officers or others responsible for enforcement, blanket permission to enter a person’s home. …
The law should state explicitly that police officers and other authorized personnel must use their powers only for a worthy purpose and in a reasonable and proportionate manner. .
As for the use of force pursuant to §12(e) (3), it should be stated explicitly that force will not be used in a way that could endanger a person’s life, limb, or health.
With regard to §12(g) (6), we believe that the authorization “to instruct an individual to perform another action”, which is not pre-defined, is unreasonable and contradicts a constitutional principle, in that it is totally vague and general.
Incorporation of the restrictions on the state of emergency regulations
The law should state clearly that the restrictions that apply to emergency regulations under §§39(d) and 39(e) of the Basic Law: The Government will apply to regulations enacted pursuant to this law as well. …
The draft bill aims at a worthy end: the replacement of the regime of emergency regulations based on the very broad authorization granted by the Basic Law: The Government, with a definition of powers in primary legislation. As we see it, however, neither the proposed model nor the details of enforcement powers, achieve its purpose. As it stands, the draft bill leaves the Government with discretionary powers that are too broad, and grants the Knesset with minimal—if any—oversight. This must be remedied and rectified.