Case Number

HCJ 2435/20

Date Decided

4-7-2020

Decision Type

Original

Document Type

Full Opinion

Abstract

This petition was submitted by four lawyers, residents of Bnei Brak, requesting an order nisi requiring that the State explain why Government Decision declaring the Bnei Brak municipal district as a “restricted zone” for six days not be revoked.

The Petitioners argued that the declaration of Bnei Brak as a “restricted zone” was intended only to prevent the spread of the virus to adjacent cities, but in no way related to the prevention of its spread among the residents of Bnei Brak themselves. They further argued that the declaration mortally harms the residents’ freedom of occupation, their liberty, dignity and their freedom of movement, and described the situation as “collective punishment”. The Petitioners argued that the declaration was made “contrary to the obligatory constitutional norms”, that its provisions violate the International Covenant on Civil and Political Rights, that the provisions should have been established in primary legislation, and that the declaration did not meet the tests of proportionality. Lastly, they argued that the declaration was made without public debate, without sufficient evidentiary grounds, and in violation of the right to be heard.

Held (per Justice I Amit, Justice A. Baron, Justice Y. Elron concurring):

1. In order to contend with the situation created by the coronavirus epidemic, the Israeli Government exercised its authority under sec. 39 of Basic Law: The Government, and promulgated emergency regulations in regard to a number of subjects intended to mitigate the danger of the spreading of the virus. On April 2, 2020, the Israeli Government decided to promulgate Emergency Regulations (Novel Coronavirus) (Restricted Zone), 5780-2020 (hereinafter: the Regulations). Under sec. 2 (a) of those Regulations:

If the coronavirus has significantly spread in a particular are in Israel, and the Ministerial Committee is convinced of the need for restricting entry and exit therefrom in order to prevent the spread of the illness outside the said area, it may, with the consent of the Government, declare the area a restricted zone, on the condition that during the period when the declaration is in force, there will be anappropriate supply of necessary goods and services in the area.

2. In terms of authority, the promulgation of the Regulations is facially in accordance with the Governments’ authority under sec. 39 of Basic Law: The Government, subject to the various limitations as established by law and precedent.

3. The declaration of Bnei Brak as a “restricted zone” followed a large number of incidents of infection in the city, and the fear of an unrestrained transmission of the virus.

4. The expert epidemiological opinion of the Deputy Director of the Public Health Service in the Ministry of Health set out the criteria for establishing a restricted zone subject to additional limitations, which are: a high level of incidence relative to other areas; a significantly higher level of incidence that in the general population; high population density; and clear concentrations of respiratory ailment in the area in the report of the Israeli Center for Disease Control (hereinafter: ICDC). The position of the opinion’s author was that in weighing the data, “the city of Bnei Brak currently constitutes an exceptionally significant center of illness, which will undermine the national effort to lessen the coefficient of contagion”. It was noted that the city of Bnei Brak meets all of the criteria for establishing a restricted zone, and accordingly, severe restrictions upon movement must be imposed.

5. It is settled law that when the Court reviews a decision by a governmental agency, it does not presume to stand in its shoes and make decisions for it in its area of expertise. It is not the practice of the Court to intervene in matters of the agency’s policy, and this is particularly so in regard to policy that is based upon clearly professional data and where the decision is of a clearly professional nature under the agency’s authority and expertise. This is particularly the case in regard to professional matters concerning public health. While the case does not concern a regular administrative decision, but rather a Government decision by virtue of emergency regulations, it is a clearly professional matter.

6. Clearly, the declaration of Bnei Brak as a restricted zone involves a number of violations of basic rights. The purpose of the severe restrictions imposed upon the city’s residents is clear – protecting the health and lives of the city’s residents and the residents of the entire State of Israel. In accordance with the professional discretion, and the data available to the decisionmakers – the scope of illness in the city, the rate of infection, and the population density – there was no recourse but to declare the city of Bnei Brak a “restricted zone”, and thus the declaration was made for a proper purpose.

7. There is a clear rational connection between the means and the purpose.

8. The less harmful means test examines the matter on a metaphoric ladder: was it possible to adopt a “lower” rung on the ladder that would be less harmful to the right? In the present case, there is no denying that declaring the city of Bnai Brak as a “restricted zone” is a very high rung on the ladder. However, it is not sufficient to show that there is another means that would violate the right to a lesser degree. The requirement is that means to achieve the purpose do so in an appropriate and necessary manner. The means were adopted after less harmful means, of the type imposed on the general population, were imposed but did not yield the desired results. In view of the number of people infected and the rate of transmission, and against the background of the city’s extreme density, there were no less harmful means available that could provide the necessary response for stemming the spread of the virus outside the Bnei Brak area at this time. Thus, the second subtest was met.

9. In regard to the proportionality stricto sensu test, the Court can only rely upon the professionals, who are of the opinion that there was no recourse but to impose declare a “restricted zone” in order to stem the spread of the virus.

10. We face an unprecedented situation of fear of the rapid spread of the coronavirus, with all that portends in terms of morbidity, death, and the collapse of the health system. In the horizontal balancing of rights, we now place the violation of fundamental liberties and rights like freedom of movement against the right to life and physical integrity – an uncommon situation in our state. In that horizontal balance, the right to life prevails.

Keywords

COVID-19, Administrative Law -- Deference, Constitutional Law -- Limitations Clause, Constitutional Law -- Judicial Review

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