About Emergency Legislation

Nations are often hurled into a state of emergency, which puts into question the most sacred foundations of the Rule of Law. However, in modern times robust democracies manage to navigate their way through rough waters and to hold on to their principles.

Israel is another story. It happens to be a frequent victim of such trying times, and has developed, inspired by the former British mandate over Palestine, a unique method of dealing with unexpected threats. The government and its ministers are empowered to promulgate “emergency regulations” that supersede the regular laws of the Knesset and are virtually resistant to the oversight of judicial review.

Critics often complain that this measure does not sit well with democratic principles, and ought to be stamped -out altogether. However, short of discarding this anachronism completely, it is self-evident that this tool to combat looming dangers should, at the very least, be tolerated sparingly and with great caution, and only where the anticipated danger to the country and its inhabitants is immediate and severe.

Not all modern regimes chose to abide by this caveat. The most prominent deviation from the supremacy of parliamentary or constitutional reign in modern history was experimented by the Nazi regime on the eve of the Second World War. Section 48 of the Weimar Constitution was amended to introduce a new concept, dubbed the “principle of exception”. This principle, masterminded early by the prominent jurist and Nazi sympathizer Professor Carl Schmitt in his famous dissertation called Political Theology of 1922, held that states of emergency surface without warning.  When they do, an “exception” to the normal procedure of law making ought to arise, bestowing on the national leader- (the Fuerer, as it were) ample authority to suspend the principles of the legal order and to legislate whatever is necessary in his discretion to confront the crisis.

Carl Schmitt, was unsurprisingly treated with scorn in retrospect, but now a variation of his theory is dangerously revived in Israel. Due to the efforts of one member of the Netanyahu government, the Minister of Communications and right-wing activist Shlomo Karhi, a “brilliant” idea surfaced in our legal history,  and necessitated a prompt action: Since some left-wing dissenters were deemed in Karhi’s mind, to doubt the tenacity and resolve of the government to respond to the aggression from Gaza, and such a “cowardly” attitude is likely, the Minister implied, to dampen the national morale, the police ought to be authorized, he suggested, to arrest the offenders, and to confiscate their property.

Such is the destiny of regimes that empower uneducated and uncouth political upstarts like Mr. Karhi to wield constitutional authority as if it were their own private plaything. But Karhi’s unsophisticated and rash attempt, primitive and silly as it might be, is not alone in staining Israel’s image as a democratic political entity and a respectable member in the community of nations. Mr. Netanyahu must be held responsible as well, not only for his own corrupt strategies, not only for his devious, self-serving portrayal of reality, but also for the disastrous choice of his incompetent lieutenants, whose sickening ideas are bound to drown our common enterprise. To be sure, it is reasonable to assume that the Minister’s rabid ideas might not be officially embraced and enacted into a binding piece of legislation,  for its absurdity exceeds even what the Netanyahu coalition is capable of. But then again, isn’t it the very same coalition that only recently legislated away the authority of the courts to exercise their power of judicial review regarding unreasonable government fiat? In a universe where reason itself is officially stamped upon to the cheers of the majority of a given country’s elected representatives, orchestrated, no less, by our Minister of Justice, these “flowers of evil”, to borrow Charles Beaudelaire’s poetic rendering of the venom spreading in our arteries, are bound to outgrow their intended proportions, and to exude their poisonous fumes over our shared political, civic, and hopefully humanistic prospects.