Continuous Judicial Review in Coronavirus Times

As the coronavirus crisis continues, judicial scrutiny of government response measures continues as well.

In their essay for The Regulatory Review, Elena Chachko of the University of Pennsylvania’s Perry World House and Adam Shinar of the Harry Radzyner Law School at the Interdisciplinary Center Herzliya provide a comprehensive and thorough description of the legal developments in Israel following the COVID-19 outbreak. I aim here to offer a modest supplement to their description by evaluating the Israeli judicial system’s response to these developments, as well as its impact on the Israeli government’s overall measures and policies addressing the coronavirus crisis.

The High Court of Justice is regarded as a powerful and effective check on actions of the Israeli government. Justices of the Supreme Court of Israel sit as the High Court of Justice when reviewing the constitutionality of government action. The High Court’s effectiveness is based on three main elements.

First, on a structural and procedural level, the High Court provides the first and only opportunity for review in most major cases. For almost all cases related to the current crisis, the High Court has the sole and ultimate power of judicial review. This means that most major cases make their way to the High Court directly and instantly when the government announces action or policy.

Second, on a doctrinal level, over the years the High Court has lowered access barriers such as standing, justiciability, and political question restrictions. As a result, almost anyone may petition the High Court about almost any governmental move.

Third, the High Court has developed many doctrines and instruments that enable it to supervise and direct the Israeli government’s legal apparatus through judicial review, which most importantly includes the Attorney General Office (AGO), the department in charge of both providing legal advice to the government and representing the government in court.

The bottom line is that review by the High Court takes place within days or even hours of a petition’s filing, which enables the High Court to review and react to government action almost in real time. The influence of the High Court over governmental policies, however, is exerted in most cases even before litigation begins—through the advisory mechanism of the AGO, over which the High Court has considerable influence.

Let us now examine how these features have played a role during the coronavirus crisis.

The first and probably most difficult issue brought before the High Court so far was the government’s decision to permit the Israeli Security Agency (ISA) to use electronic surveillance tools—normally used to counter domestic terrorism—to track the movements and contacts of coronavirus carriers. The General Security Service Law, which governs the ISA’s operations, requires that any use of electronic surveillance tools outside the realm of domestic security only be done with the approval of a parliamentary committee. At the time of the decision to permit ISA surveillance, however, this committee was not yet formed—due to the stalemate in the Israeli Parliament, the Knesset, after the recent election. Without the approval of a parliamentary committee, the government issued emergency regulations to initiate these tracking mechanisms.

There is no doubt that the decision to authorize the ISA to track Israeli citizens for public health purposes was exceptional. This decision resulted in serious violations of fundamental rights such as privacy.

It should be noted, however, that the drafters of the emergency regulations were well aware of their sensitive nature. Accordingly, the regulations included several provisions aimed to mitigate the infringement on human rights.

For example, the emergency regulations were set to expire after only 14 days, and the regulations included constraints on how the information gathered through surveillance would be used. The ISA was not allowed to have access to the information collected, or to use or process the information for any purpose. In fact, the ISA’s role was purely for information gathering, as its involvement ended when the ISA passed the information to the Ministry of Health. The regulations also provided that all information should be erased from any databases within a short period.

It is clear that the AGO closely supervised the drafting of these unusual regulations in light of inevitable challenges before the High Court. In fact, the Attorney General’s involvement in developing these regulations was entrenched in the regulations themselves, since the regulations provide that any guidelines or procedures related to this sensitive process should be approved by the AGO.

Indeed, the emergency regulations were challenged before the High Court immediately after their promulgation. Within two days, the High Court issued an interim injunction, staying the force of the regulations unless they were submitted to the parliamentary committee for approval within five days. The parliamentary committee was then formed, and within this period it conducted a thorough review of the regulations’ content to mitigate potential privacy violations and to ensure proper supervision over these extraordinary powers.

The High Court, however, did not tolerate this state of affairs for long.

Within a month of the promulgation of the emergency regulations, the High Court ruled again on the matter. The High Court recently determined that, since the exigencies of the COVID-19 crisis have been mitigated, the government may not continue its surveillance practices any further—at least, not on the basis and authority of the administrative regulations. Rather, the High Court required that the Knesset develop and enact primary legislation to enable the use of such extraordinary measures. Accordingly, the High Court allowed the government a few additional weeks to reform the relevant law, but declared that unless such legislation is passed, the government would not be allowed to pursue its surveillance practices.

Over the course of the last month, several other coronavirus regulations came before the High Court of Justice. Petitioners in these cases sought to challenge various government-imposed restrictions, such as stay home orders, restrictions on movement within certain designated municipal zones, limits on public gatherings for prayer, and so forth. Additional petitions challenged other aspects of the government’s policies, including the established priorities for making testing available as well as the decision to turn nursing facilities into COVID-19 treatment facilities.

The High Court heard all of these petitions within days—but all were ultimately dismissed after the Court accepted the government’s arguments that these restrictive measures were justified due to the exigencies posed by the coronavirus outbreak.

One may be tempted to conclude that the judicial system simply relinquished its supervisory role in the face of the pressures of the crisis. The reality, however, is more complex.

A closer look into each of these cases reveals that, although the petitions were ultimately dismissed, in the course of litigation the government was called on to provide detailed explanations for its decisions, and governmental policies were often reshaped and refined in the course of litigation.

The bottom line is that the judiciary’s supervision of executive policymaking did not come to a halt during the crisis—but rather, through judicial review, the judiciary exercised significant influence over the government’s policies and over Israeli society during this tumultuous period.

Yoav Dotan is the Edwin A. Goodman Professor of Law at the Hebrew University of Jerusalem.