High Court upholds state of emergency

Decision comes 13 years after petition is filed; Israel has been in declared state of emergency since 1948.

May 8, 2012 16:26
3 minute read.
Israel's Supreme Court

Israeli Supreme Court 311. (photo credit: REUTERS/FILE)


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The High Court of Justice ruled on Tuesday to reject a petition calling for the cancelation of Israel’s state of emergency – 13 years after it was first filed.

Israel has been in a state of emergency since 1948, in accordance with article 38 of the Basic Law: The Government.

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According to the Basic Law, amended in 1992, the Knesset may declare a state of emergency, which may remain in force for one year, after which the Knesset can renew its declaration if it sees fit.

Since 1992, Knesset has renewed the state of emergency annually. In 1999, the Association for Civil Rights (ACRI) in Israel petitioned the High Court, asking the justices to order the government to nullify the state of emergency, which they argue grants broad human rights violations.

In a unanimous ruling, Supreme Court President (emeritus) Dorit Beinisch and Justices Elyakim Rubinstein and Edna Arbel said the petition had “run its course.”

Since ACRI filed the petition, however, the state has slowly done away with several emergency ordinances and laws that require a state of emergency.

In 2006, the court noted, the Justice Ministry filed a report to the court stating that several emergency laws have been abolished, including the Emergency State Search Authorities Law (Temporary Order).

Rubinstein said that while “much work remains to be done” on the issue, the government should be allowed to complete the legislative process – which he noted that ACRI had helped to promote. He emphasized that the work should be completed in the not-toodistant future.

“Israel is a normal country that is not normal,” Rubinstein said, adding that Israel is ‘normal” in the sense that it is a democracy whose fundamental rights – free elections, freedom of expression, the independence of its courts and legal advice – safeguard its basic essence as a Jewish and democratic state.

‘[Israel] is not normal because the threats to its existence still remain,” he said. “It is the only democratic country under such a threat, and there have been no proper relations with its neighbors, despite peace agreements with Egypt and Jordan, and certain agreements with the Palestinians.”

Israel’s ongoing fight against terrorism would likely continue for the foreseeable future, Rubinstein said.

“Every man is still not under his vine and under his fig tree,” Rubinstein said, referring to a passage from the Book of Kings, which describes a time of peace and prosperity in ancient Israel under King Solomon’s rule.

However, Rubinstein added, it was only to be expected that emergency legislation should be adapted to suit a 64-year-old democratic state.

The government’s challenge, the justice said, was to design legislation that would incorporate Israel’s “normal and not-normal” aspects.

“This goal is achievable,” Rubinstein concluded. “Lo b’shamayim hi [It is not in the Heavens.”

In her part of the ruling, Beinisch criticized what she said is a “tenuous connection” between many emergency orders and regulations enforced decades ago, and the state of emergency. This court existed as much half a century ago,” Beinisch added.

ACRI legal adviser Dan Yakir slammed the ruling, saying it was “regrettable.”

“The High Court has left intact an abnormal situation, under which [Israel] is under a state of emergency for 64 years,” Yakir said.

The state had 13 years since the petition was filed to complete the legislative work required, he added.

“The state of emergency declaration and the enforced legislation subject [the court] to grant the government draconian and far-reaching powers,” Yakir said. “On the very day that the government established the largest coalition in the country’s history, there is a growing concern that these powers will be misused to violate basic human rights.”

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