Case Number
HCJ 3091/99
Date Decided
5-5-2012
Decision Type
Original
Document Type
Full Opinion
Abstract
The petition, filed in 1999, concerned the repeated renewal of the declaration of a national state of emergency under sec. 38 of Basic Law: The Government. The petition asked that the Court revoke the declaration of a national state of emergency.
The High Court of Justice (per Justice Rubinstein, President (Emerita) Beinisch and Justice Arbel concurring) dismissed the petition, holding:
Although the work is not finished, the petition has exhausted its purpose. The state authorities should be allowed to work toward completing the legislative processes that the Petitioner helped advance by means of its petition. While this was, indeed, a worthy petition, we cannot ignore the fact that Israel has not yet arrived at its safe haven. Israel’s situation was and continues to be sensitive and complex, and it does not allow for depriving the state authorities of necessary emergency powers. However, we cannot abide the long exploitation of the declaration of a state of emergency in situations that require balanced, up-to-date legislation rather than emergency measures.
Under the current circumstances, and in light of all the steps that have been adopted, there is no longer a need for the intervention of the High Court of Justice in regard to the authority’s declaration of a state of emergency, but the gates are not barred before future petitions as may be necessary. A special team is currently acting in regard to the matter of the declaration of a state of emergency, which supervises the progress of the government’s work toward disengaging legislation from the declaration of a state of emergency. Additionally, a number of legislative proceedings have reached their appropriate conclusion in the course of the years during which this petition has been pending. Additional bills have passed their first reading, while others that are in various stages of legislation are intended to rescind or amend existing legislation in order to uncouple the historical connection, whose justification has dwindled, to the declaration of a state of emergency. These legislative processes are indicative of a trend and understanding that the time has come to say farewell to the vestiges of emergency legislation that has been with us since the state’s inception. The Court added that, as a rule, it does not replace the discretion of the competent authorities with its own, and that this rule is all the more appropriate when we are concerned with a dynamic security situation that is difficult to predict.
The High Court of Justice noted that the procedures for changing the current situation and for disengaging the connection between extant legislation and the declaration of a state of emergency should continue, but for the time being, the continuation of the process should be left to the competent authorities, along with the message that it would be proper that what began over ten year ago should be brought to an end in the not-distant future.
Keywords
Constitutional Law -- Basic Law: The Government, Constitutional Law -- State of Emergency and National Security
