President Trump’s attempt to sidestep Congress’s refusal to fund the construction of a wall between the US and Mexico by declaring a “state of emergency” on immigration has been the object of fierce criticism. When the executive branch assumes extraordinary powers in the name of a dubious emergency, it threatens to undermine the checks and balances essential for preserving the rule of law. For many Israelis, however, the public outcry may have elicited little more than a shrug. What’s the big deal? After all, we have been living in a permanent state of emergency ever since the creation of the state decades ago.
In recent days, the Knesset once again renewed the perpetual declaration of a state of emergency that has been in force since 1948 – and as usual, the issue didn’t attract much public attention. But in Israel, too, the declaration of a state of emergency has far-reaching implications. It allows the Government to enact emergency regulations that can supersede laws passed by the Knesset – a power utilized occasionally to manage labor disputes in sensitive domains. As recently as August 2017, the Government issued emergency regulations to force striking employees from the Israel Atomic Energy Commission to come back to work. In addition, several Israeli laws are valid only in a declared state of emergency. A prime example is the Administrative Detention Law, which grants the Defense Minister the power to imprison individuals without trial if they are deemed to pose a danger to national security.
In 1999, the Association for Civil Rights in Israel petitioned the High Court of Justice to abolish the state of emergency, arguing that maintaining a declaration unwarranted by circumstances undermines the rule of law (full disclosure: I used to work for ACRI). In response to pressure by the justices – and a growing recognition that the declaration remains in force primarily to prevent the lapse of various statutes – the Government and the Knesset embarked upon an extensive effort to sever the connection between these laws and the declared state of emergency. Today, some two decades later, this process is still underway.
Ending the state of emergency is an important goal, and we should urge the government to pursue it faster. Nevertheless, these efforts present a significant dilemma: Israel may not be facing a national emergency, but it does continue to confront complex security challenges and at times has recourse to exceptional measures. One of the most significant steps taken thus far to enable the end of the declaration was the enactment in 2016 of a comprehensive Combating Terrorism Act, which sought to create a modern anti-terrorism framework that could replace emergency statutes. However, in important respects, the new law itself reflects emergency norms. If the process of ending the state of emergency leads to the enshrining of draconian measures in the permanent statutes of the Israeli law books – without checks and balances appropriate to ordinary times – it may contribute to a further erosion of the rule of law.
The next Knesset is expected to resume deliberations on a chapter of the Combating Terrorism Law that seeks to sever the power of administrative detention from the emergency declaration, allowing for preventive security detention, based on secret evidence, even in ordinary times. According to the law, detention can last up to six months and can be renewed indefinitely. While it is subject to judicial review, the process lacks basic procedural safeguards and does not provide judges with the tools they need to ensure a fair hearing.
The Government bill also allows for the imposition of a broad range of administrative control orders – from house arrest to a ban on entering certain areas or leaving the country. And these are powers that are used in practice: in recent years dozens of control orders have been issued, mainly against right wing activists. In addition, according to Justice Ministry data, around 20 administrative detention orders were issued in Israel between May 2017 and August 2018. There are also hundreds of Palestinians held in administrative detention in the territories, under the military legislation in force there: as of April 2019, there were 479 such persons.
In this matter, as in others that the Knesset will have to grapple with as part of the efforts to put an end to the declared emergency, we must be cognizant of the need define checks and balances that are appropriate for Israeli democracy in the twenty-first century. Otherwise, even if we finally terminate the state of emergency to which we have become accustomed, we may find ourselves throwing away the baby with the bathwater.
Adv. Lila Margalit is a researcher at the Israel Democracy Institute. In the interest of full disclosure: the author was formerly employed by ACRI.