yossi beilin 298.
(photo credit: Ariel Jerozolimski)
The High Court of Justice on Wednesday rejected a petition by MK Yossi Beilin (Meretz) demanding that the government formally declare that Israel is in a state of war in accordance with the requirements of the Basic Law: Government.
At the same time, the court rejected a petition by businessmen in Haifa and Tiberias demanding that the government declare a state of emergency in Haifa and the North and that it draft emergency regulations to prevent their businesses from collapsing. It also rejected a similar petition by the Movement for Quality Government.
In doing so, the court endorsed the government's handling of its formal obligations regarding the definition of the current state of emergency and of the economic hardships sustained by employees, the self-employed and industrialists over the past three weeks.
Beilin's petition challenged the constitutionality of the current situation. He argued that when the army is conducting an intensive campaign against Hizbullah and sending ground troops into southern Lebanon, it must make a formal decision to go to war and inform the Knesset. He charged that the government was violating Article 40 (a) of the Basic Law: Government according to which "the state may only launch a war in accordance with a decision by the government."
Beilin and his lawyer, Haggai Ashalgi, argued that the law also obliged the defense minister to immediately inform the Knesset Foreign Affairs and Defense Committee of the decision to declare war and the prime minister to inform the Knesset plenum as soon as possible. These obligations express the constitutional responsibility of the government to the Knesset, Beilin maintained.
But according to Justices Dorit Beinisch, Ayala Procaccia and Edna Arbel, the government is entitled by law to determine what is and what is not a state of war. According to Article 40 (b) of the Basic Law: Government, the government does not have to make a formal declaration of war to conduct "military operations required to protect the state and public safety."
The justices wrote that "under the circumstances, the government was entitled to determine that the military operations which it decided upon did not constitute a 'launching of war' but rather military operations for self-protection in response to aggression. [In doing so,] the government, acted in accordance with its clear prerogatives and the broad latitude that it has been given to make such decisions regarding foreign affairs and defense policy."
The court added that even though the government had not made a formal declaration in accordance with Article 40 (a), it had repeatedly informed the Knesset of its decisions. For example, on July 12, the government passed a formal resolution in which it said it would "react harshly" to the Hizbullah attack on IDF soldiers earlier that day.
The following day, Defense Minister Amir Peretz appeared before the Knesset Foreign Affairs and Defense Committee to discuss the situation. On July 17, Prime Minister Ehud Olmert appeared before the Knesset plenum.
The justices also wrote that there is no clear definition of what constitutes war and that the current situation may be perceived by the public as war, even if the government did not declare it to be so. Furthermore, from a legal point of view, the current situation may justify the implementation of other laws on the statute books that go into effect in a state of war, even without a formal government declaration.
As for the petitions demanding that the government take legal steps, such as declaring a state of emergency in the North, the court said this was unnecessary. The government has already taken steps to compensate workers in the north, including drafting a law prohibiting employers from firing employees who have not shown up for work during the emergency. The government has also reached an agreement with the employers and the Histadrut to compensate businesses for loss of revenue and other expenses. The court urged the state to take other necessary measures to make sure that those who suffered from the emergency situation were properly compensated.
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