The Return to Balfour: Israel’s Supreme Court Strikes Down Coronavirus Regulations Curbing the Right to Protest

On April 4, the Israeli High Court of Justice issued its judgment in National Responsibility v. Gov’t of Israel, the latest case in a series of legal challenges to controversial measures adopted by the Israeli government in response to the coronavirus pandemic. In March 2021 alone, the court issued three important judgments that ordered the state to significantly limit its contact-tracing surveillance program (discussed previously in Lawfare and since discontinued), suspend legislation allowing for the transfer of personal data of nonvaccinated individuals from health care providers to municipal authorities, and remove travel quotas on the number of Israeli nationals eligible to enter the country. All three cases demonstrated the government’s excessive curtailing of individual rights and a flimsy factual basis used to support the restrictions’ necessity and proportionality. Few, if any, other democracies have taken such measures, and the court’s decisions in the three cases brought Israel back into the democratic fold.

The April 4 judgment is different, in some respects, from the three earlier judgments. It dealt with a dilemma that other democracies have also confronted as part of their response to the coronavirus crisis—the question of whether to apply general limits on public gatherings to demonstrations. When viewed from that perspective, the Israeli government’s decision not to exempt public demonstrations from the second national lockdown (September-October 2020) is not wholly unreasonable or highly exceptional. Yet, like the other measures reviewed by the court in March, the court found that the necessity and proportionality of the measures were not firmly established; and it subsequently struck down the relevant regulations and restrictions.

The Facts Before the Court

The second wave of the coronavirus pandemic hit Israel hard in July 2020, and the public health situation deteriorated throughout the summer and fall (peaking at more than 9,000 new daily cases in late September 2020). The health crisis coincided with a prolonged political crisis, revolving around the corruption indictment and trial of Prime Minister Benjamin Netanyahu and his refusal to resign from office. This unusual political situation has generated a mass protest movement, involving large weekly rallies every Saturday night in front of the prime minister’s official residence on Balfour Street in Jerusalem, smaller weekly demonstrations in front of his private residence in Caesarea, and smaller protest vigils in hundreds of traffic junctures and bridges throughout the country. Political allies of the prime minister in the Knesset and in the media have alleged that the protests are undercutting the country’s efforts to effectively curb the spread of the pandemic in both direct and indirect ways. In addition to restricting mass gatherings without proper social distancing, they also allegedly complicate efforts to enforce bans on other gatherings, such as mass prayers or weddings. The prime minister’s supporters called therefore for the banning of all large gatherings, including the anti-Netanyahu protests.

The main law that organized the government’s responses to the pandemic—the Special Powers for Addressing the Novel Coronavirus (Temporary Legislation) Law 2020—included a specific exemption from lockdown decrees for individuals seeking to exercise their right to demonstrate. However, the dual challenges of a worsening public health situation and political antipathy toward the anti-Netanyahu rallies led to a rapid amendment of the Special Powers Law in late September 2020. The fall amendment authorized the government to declare a “special state of emergency” during which the special exemption granted to demonstrations under the original law would be suspended. Pursuant to such a declaration, regulations entered into force on Sept. 30, 2020, imposing a national lockdown and providing that demonstrations could take place only under the general terms of the lockdown (within 1,000 meters of the demononstrator’s place of residence and in groups of no more than 20 persons).

The Petitions Against the Special Powers Law

The six petitions, addressed jointly by the court in the April 4 judgment, demanded that the court strike down the Special Powers Law in its entirety, or—at minimum—nullify the limits on regulations placed on the right to peacefully assemble. The allegations directed at the Special Powers Law focused mostly on its democratic shortcomings, which the petitioners claimed had to be considered in light of the extreme powers to limit the daily activities of individuals and businesses. Among these shortcomings, the petitioners—public interest nongovernmental organizations and concerned individuals—focused on the hasty manner in which the Special Powers Law was passed in July 2020, the conferral of authority to the government to declare states of emergency (under Israeli constitutional law, a state of emergency is typically declared by the Knesset), and the limited role of the Knesset in reviewing regulations enacted under the law. (Regulations were subject to a complex Knesset-Government co-decision mechanism, but could enter into force, in some cases and for limited periods of time, without Knesset approval.)

The court rejected all of these arguments, noting that the legislation process was fast but still allowed for comprehensive deliberation and consequential revisions, the government’s power to declare a health emergency is not exceptional under Israeli law and is mitigated by the power of the Knesset to control extensions of the declaration beyond an initial 45-day period, and the provisions regulating the division of labor between the government and the Knesset—which allow the government in certain cases to approve temporary regulations without approval of the Knesset—are not unreasonable in light of the need for urgent action.

Review of the Special Powers Law and the Regulations’ Provisions on Demonstrations

The crux of the legal challenge to the Special Powers Law revolved around the provisions that limited demonstrations. The petitioners claimed that the September 2020 amendment and its regulations resulted in a disproportionate limit on the constitutional right to demonstrate (a right developed in the jurisprudence of the court by way of interpretation of Basic Law: Human Dignity and Liberty) and were not adequately supported by facts. The petitioners also claimed that the ministers who passed the regulations were operating under a conflict of interest (limiting demonstrations directed against them) and that they adopted the regulations by a phone vote without proper consideration of their implications. Although the court had doubts about the constitutionality of the September amendment, the chief justice of the Supreme Court of Israel, Esther Hayut, who wrote the main opinion for the court, eventually accepted the state’s claim that judicial review should focus on the decision to restrict the right to demonstrate. In other words, the court should focus on the regulations limiting the right to demonstrate and not on the Special Powers Law that gave the government the authority to pass them.

In reviewing the regulations, Hayut, speaking for the majority, rejected the government’s mootness claim. (The government alluded to the fact that the challenged regulations were no longer in force at the time of the hearing.) Hayut noted that since real-time judicial review of short-term measures in emergency situations is difficult to undertake, the court should provide guidance for future cases in which regulations of such a nature would be considered. She also noted that fines were imposed on an unknown number of demonstrators who violated the regulations, and that for them the case was certainly not moot. It is on this issue of mootness that one of the justices, Noam Solberg, dissented from the judgment as a whole.

With respect to the petitioners’ claim that the government hastily adopted the regulations, Hayut agreed that the procedure was defective. In particular, Hayut cited the lack of documentation of serious deliberation among the ministers and that it was unclear what factual record was placed before the ministers when they voted by phone to approve the regulations. Hayut thought that striking down the regulations on process concerns was not justified, however, since the Knesset subsequently approved the regulations following a more robust deliberative process.

On the merits of the regulations, Hayut sided with the state’s position that the numerical cap of 20 demonstrators found in the relevant regulation (The Special Powers (Additional Restrictions and Provisions) Regulations 2020, Sec. 24) should be interpreted as referring to the number of demonstrators in each “capsule” at the location of the demonstration. This, in the government’s view, meant that no limit was imposed on the overall number of capsules allowed, provided they maintain 20 meters distance from one another. The court found that interpretation was based on rational public health considerations and that the regulations met constitutional standards. However, with regard to the other component of the regulations—the 1,000 meter limit from the demonstrator’s place of residence—Hayut was far more critical of the government’s position.

She noted that the main location of the demonstrations—next to the prime minister’s official residence on Balfour Street—was a key aspect of the protests and that preventing access by the demonstrators to that location by reason of the 1,000 meter lockdown limit struck at the very heart of the right to demonstrate. Under such circumstances, limits can be justified only if the government could show a serious and near-certain harm to public order or public peace. Even then, the infringement of the right to demonstrate should be minimized as much as possible. The chief justice was not persuaded that the state’s main justification—that anyone violating the lockdown rules would be able to claim that they were on their way to demonstrate—provided a strong rational basis for the 1,000 meter restriction. She noted that other exceptions, such as shopping for essential supplies, could be similarly manipulated and that allowing for localized demonstrations inside the 1,000 meter perimeter also created challenges in enforcing social distancing. She was also unpersuaded that less restrictive measures such as individualized questioning of persons claiming to travel to a demonstration or authorization of demonstration by motorized convoys were not feasible.

Ultimately, Hayut found the regulations to be disproportionate in a stricto sensu manner:

Once you deprive from the demonstrators the ability to express their protest or support as may be the matter, in front of subject of the demonstration, you have deprived from them to a large extent the crux of the matter. The upshot of the distance restriction provided in Regulation 24(1) is, therefore, that, pursuant to it, serious harm was inflicted on the ability of the demonstrators to express what they wished to express. As a result, although this restriction does not fully negate the right to demonstrate, it comes close—too close—to this threshold. To that one may add that in the particular circumstances, the weight assigned to the right to demonstrate was particularly significant in view of the extra importance that should be assigned to the ability to criticize the government in times of emergency, especially when the government is adopting, on a daily basis, decisions which have very significant repercussions on the lives of the individual, his rights and liberties. In such a reality, there is an enhanced significance to the right to demonstrate which “allows a group of people to partake in the shaping of the public agenda, to make their voice heard, to raise awareness to burning issues in a direct fashion and to express solidarity and support for a specific message” [cite omitted].

At the same time, Hayut found the harm to public health to be speculative (“unknown and unproven”) and not based on data, falling short of the “near certainty” constitutional threshold. There was also no serious attempt to minimize to the extent possible the infringement on the right to demonstrate. This led her to find the regulation in question—Regulation 24(1)—unconstitutional. In view of the determination that the 1,000 meter distance limitation was unlawful, the court ordered the state to rescind and reimburse all fines imposed on individuals who had breached it.

Seven of the other eight justices on the panel joined Hayut’s judgment. Justice Menachem Mazuz was of the view that the procedural failures in the adoption process of the September regulations were serious enough to require the annulment of the entire body of regulations. He also expressed discomfort with the prime minister’s personal involvement in approving the regulations, given that the demonstrations were directed mostly against him personally. Justice Daphne Barak-Erez underscored that crucial to exercising the right to demonstrate is having the ability to choose the location of the demonstration and to attain a critical mass of demonstrators. Barak-Erez opined that demonstrations should be regarded as an essential activity in a democracy (like obtaining food and medical treatment). Justice Hanan Melcer also underscored the latter point, finding that the protection of the right to demonstrate is an important form of political free speech and serves as the “litmus test” separating democracies from non-democracies.

Observations

The judgment in the National Responsibility case should be seen as one ruling in a series of judgments that pushes back against government overreach in response to the coronavirus pandemic. These cases provide an analysis that insists on a proper factual basis for rights-limiting decisions, and on a strict review of the necessity (or rational basis) and proportionally of measures taken as part of efforts to effectively fight the pandemic. However, the limitations on demonstrations presented a difficult challenge. Unlike some of the measures nullified by the court in March, they were not wholly unreasonable and were grounded in the same logic that led Israel and other countries to restrict large public gatherings. Indeed, much of the discourse in Israel in the months leading up to the September lockdown was focused on ideologically charged questions of whether protest gatherings should be treated like other gatherings in the open air that serve important personal and group needs and interests such as prayer ceremonies, funerals, weddings and cultural events.

In its judgment, the court tried to avoid falling into the trap of prioritizing political (anti-government) demonstration over other activities involving the exercise of basic rights by individuals. Instead, it focused almost exclusively on the right to demonstrate—and whether the strict restrictions placed on it were clearly necessary and proportional in light of the centrality of the right in a democracy (an exception to that approach can be found in the judgment of Justice Melcer, who also noted the importance of the right to pray in public). Even then, the court did not put all of its eggs in one basket and criticized the decision-making process and the failure to consider alternative, less-harmful restrictions. This approach allowed the court to strike down the lockdown regulations on distance relating to demonstration, while refraining from expressing a view on parallel arrangements relating to other limited activities during lockdown such as prayers, weddings and similar activities.

At the same time, it is noteworthy that the court did not use the potential “escape hatch” offered by the expiration of the regulations. The court instead used the judgment (like in other recent decisions in cases involving the anti-Netanyahu demonstrations) as a “teaching moment” for reminding the government and the general public of the importance of the right to demonstrate and the fact that a serious justification is required for any restrictions on such a fundamental right. Here, aligning itself implicitly with the position found in General Comment 37 (2020) of the Human Rights Committee, the court identified choice of location (or “sight and sound”) as a key element in the exercise of the right.

The judgment shows that the Israeli High Court of Justice still plays an important, even if delayed, role in checking government excess and reaffirming basic democratic and human rights values. The fact that the decisions against the government were issued in March and April—when the pandemic appears to be on the retreat—may reflect both the savviness of the court in controlling the timing of its decisions and the government’s own inability to adjust the measures it adopted. The government’s lack of nuance in issuing restrictions provided sufficient reason for the court to rescind excessive measures.

Dedicated to the memory of Christof Heyns, who served on the Human Rights Committee as Rapporteur for General Comment 37 (freedom of assembly) and passed away on March 28, 2021.