COVID-19 Roundup

The various measures adopted by the Israeli Government to confront the Covid-19 pandemic brought a flurry of petitions before the Supreme Court. The petitions ranged from a request to declare a Jewish leap year in order to delay Passover, to objections to particular restrictions and closures, and a challenge to the constitutionality of the contact-tracing regime adopted by the Government. Below, we present summaries of sixteen cases decided by the Court on petitions related to the Covid-19 pandemic. We have not included summaries of petitions that were withdrawn, rendered moot (e.g., HCJ 3200/20 Netivot Municipality v. Director General of the Ministry of Health (May 25, 2020)), resolved without a reasoned judgment,  dismissed for laches or an absence of factual support (e.g., HCJ 2589/20 Accountants Association v. Government of Israel (April 30, 2020)), or dismissed in limine for such reasons as failure to exhaust administrative remedies (e.g., HCJ 2176/20 Doron, Tikotzky, Kantor, Gutman, Ness, Amit Gross, Advocates v. Government of Israel (March 22, 2020)).

As will become clear from the review, the Court generally demonstrated a high degree of judicial restraint in addressing the petitions. While the Court granted the petitions in HCJ 2109/20 Shachar Ben Meir, Adv. v. Prime Minister (April 26, 2020) on constitutional grounds, and conducted constitutional review of various regulations and orders in accordance with the accepted tests under the Limitations Clause of Basic Law: Human Dignity and Liberty, the Court showed a general tendency toward deference to administrative discretion and non-intervention in matters of policy in its approach to petitions challenging measures adopted by the Government in confronting the Covid-19 pandemic.

HCJ Petitions against Data Tracing by the Israel Security Agency

HCJ 2109/20 Shachar Ben Meir, Adv. v. Prime Minister (April 26, 2020)

In response to the corona virus epidemic, the Israeli government promulgated two sets of emergency regulations: (1) Emergency Regulations (Authorization of the Israel Security Agency to Aid in the National Effort to Limit the Spread of the Novel Coronavirus), 5780-2020 (hereinafter: the ISA Regulations); (2) Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations). The regulations permitted the collection, processing and use of “technological data” of persons who had contracted the novel coronavirus (hereinafter: the virus or Covid-19), in order to combat the spread of the virus. In response to the regulations, on March 18, 2020, a petition was filed in the High Court of Justice challenging the constitutionality of the regulations, as well as the lawfulness of the regulations in the absence of parliamentary oversight. Two additional petitions were filed on the following day. The petitions were joined in HCJ 2109/20 Shachar Ben Meir v. Prime Minister. The Court issued two interim decisions and a judgment, summarized below.

1.            HCJ 2109/20 Coronavirus Data Tracing Interim Order (March 18, 2020)

On Thursday, March 19, 2020, the Supreme Court, sitting as High Court of Justice (President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg), held a hearing on the petitions, and issued an interim order prohibiting the implementation of the regulations in the absence of parliamentary oversight. An English translation of the full text of the decision can be read here.

2.            HCJ 2109/20 Coronavirus Data Tracing Interim Order Update (March 24, 2020)

After receiving updates from the Respondents, according to which a temporary Foreign Affairs and Defense Committee of the 23rd Knesset had been established, as well as a Subcommittee for Intelligence and Secret Services of that Committee, and that a memorandum had been prepared for the enactment of primary legislation in regard to the Police Regulations, the Court revoked the interim order previously granted. An English translation of the full text of the decision can be read here.

3.            HCJ 2109/20 Coronavirus Data Tracing Judgment (April 20, 2020)

In its decision of April 20, 2020, the Court (per President E. Hayut, Deputy President H. Melcer and Justice N. Sohlberg concurring) granted the petitions. The Court held that while the Government Decision met the tests for constitutionality under the exigent circumstances in which it was made, continued authorization of contact tracing by the ISA would require primary legislation by the Knesset. The Court further held that in view of the fundamental importance of freedom of the press in a democracy, contact tracing of journalists could not be carried out without consent. The issue of the Police Regulations was rendered moot, as the Government decided to withdraw the Criminal Procedure (Enforcement Authorities – Telecommunication Data) (Temporary Order – Novel Coronavirus) (Receiving Location Data for the Purpose of Supervision of Isolation Orders) Bill, 5780-2020, and the Police Regulations lapsed.

An English translation of the full text of the judgment can be read here.

Intercalating the Jewish calendar during the coronavirus pandemic

HCJ 2152/20 Meshulami v. Chief Rabbinate of Israel, (March 22, 2020).

On Sunday, March 22, 2020, the Supreme Court addressed a petition to order the Chief Rabbinate to intercalate the Hebrew calendar. The Petitioner sought to delay Passover by thirty days due to the current corona virus emergency.

The Court (per Justice N. Sohlberg, Justices U. Vogelman and Y. Elron concurring) dismissed the petition in limine, expressing doubt as to the justiciability of the issue – a doctrine rarely invoked by the Court – and for lack of cause. The full judgment can be read here.

Conversions of Geriatric Facilities to Provide Beds for Coronavirus Patients

1.            HCJ 2199/20 Peshe Brook v. Ministry of Health (March 24, 2020)

Due to the need for hospital beds for the treatment of coronavirus patients, the Israeli Ministry of Health decided to transfer patients from under-utilized geriatric hospitals to other facilities, and adapt the evacuated hospitals for the treatment of coronavirus patients.

Two cases were brought before the Supreme Court in this regard. The first, LAA 2199/20 Peshe Brook v. Ministry of Health, sought leave to appeal a decision by the Administrative Affairs Court denying a request for an interim order that would prevent the transfer of the Applicants to alternative facilities while their petition against the Ministry’s decision remained pending. The request was denied in a decision by Justice U. Vogelman for lack of a sufficient cause for intervention in the lower court’s decision. Although the Court recognized the difficulty that the transfer posed for the Applicants, Justice Vogelman held that “the balance of interests tilts in favor of the Ministry of Health, which seeks to use the Center’s 360 available beds for the hospitalization of corona patients …”.

See the translation of the decision here.

2.            HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health (March 26, 2020); HCJ 2255/20 Ezra Manor v. Ministry of Health (March 26, 2020).

The second case, HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health; HCJ 2255/20 Ezra Manor v. Ministry of Health, challenged the decision of the Ministry of Health to convert several departments in the Shoham Government Geriatric Center in Pardes Hanna-Karkur for the treatment of moderate to severe coronavirus patients. The Court (per Justice A. Stein, Justice G. Karra and Justice N. Sohlberg concurring) denied both petitions.

In denying the petition in HCJ 2233/20, the Court criticized the “not in my backyard” attitude of the Local Council, and held that “Shoham is a hospital that belongs to the State, and it may decide what goes on between its walls to the best of its professional discretion in order to treat patients that it – the State, and not the Pardes Hanna-Karkur Local Council – decides to hospitalize. That authority is granted the State by virtue of it general prerogative as an executive authority, by virtue of the provisions of the Public Health Ordinance in regard to the establishment and administration of hospital and other medical institutions in a state of emergency, by virtue of the provisions of the Interpretation Law concerning auxiliary powers… as well as by virtue of its being the owner of the hospital under discussion”.

In denying the petition in HCJ 2255/20, the Court recognized the Petitioners’ distress, but held that the State had struck a proper balance between the violation of the rights of the Petitioners and the expected harm to the general public. Citing Justice Vogelman’s decision in LAA 2199/20, the Court held that “in making this decision, the State exercised professional discretion, and its decision is certainly not disproportionate”.

See the translation of the decision here.

Closure of Bnei Brak and Ramot due to the Coronavirus

HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister (April 7, 2020).

Due to the high rate of incidence of the coronavirus in the city of Bnei Brak, on April 2, 2020, the Israeli Government declared the city a “restricted zone” for a period of six days, effectively putting the entire city under quarantine. The declaration was made by virtue of emergency regulations promulgated to confront the coronavirus epidemic.

The petition challenged the Government’s decision, arguing that the declaration was intended only to prevent the spread of the virus to adjacent cities, but did not relate to the prevention of its spread among the residents of Bnei Brak themselves, and that it violated the residents’ freedom of occupation, their liberty, dignity and their freedom of movement. They further argued that the declaration could not be made by virtue of emergency regulations, but required primary legislation, and that it did not meet the proportionality requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty.

On April 7, 2020, the High Court of Justice (per Justice I. Amit, Justice A. Baron and Justice Y. Elron concurring) denied the petition on the basis of deference to the policy decisions of governmental agencies in the exercise of their discretion in purely professional matters that are within the agency’s authority and professional expertise. The Court noted that such deference particularly applies in matters of public health.

Inasmuch as the declaration involved the violation of a basic right, the Court went on to examine whether the decision met the requirements of the Limitations Clause, and found that the decision met all of the conditions and case-law tests required by the Limitations Clause.

An English translation of the judgment in HCJ 2435/20 can be read here.

Closure of Areas in Jerusalem

HCJ 2491/20 Ramot Elon Community Council v. Government (April 14, 2020)

Following the Court’s decision in HCJ 2435/20, on April 12, 2020, the Government declared several areas in Jerusalem “restricted zones” for a period of three days. A petition submitted the following day challenged the declaration of the Ramot neighborhood a restricted zone. On April 14, 2020, the Court (per Justice A. Baron, Justices I. Amit and A. Stein concurring) dismissed the petition in limine, citing the above judgment (HCJ 2435/20), and holding that there was no cause for the Court’s intervention in the Government’s decision, inasmuch as the decision was based upon an appropriate factual grounds.

Availability of Covid-19 Testing for Bedouin Residents of the Negev and Residents of East Jerusalem (Kfar Akeb and the Shuafat Refugee Camp)

1.            HCJ 2359/20 Adalah – Legal Center for Arab Minority Rights v. Prime Minister (April 14, 2020)

This petition concerned a claim of inequality in regard to Covid-19 testing for the Bedouin residents of the Negev. The Petitioners argued that the way that the Ministry of Health had set up drive-through testing centers (hereinafter: testing centers) and the mobile test system denied equal accessibility to those residents.

The State responded that the testing system was not unequal, and that it had established testing centers in Beer Sheva, and in the Negev towns of Rahat and Kseifa, which were all available to the Bedouin population, as was the mobile system, and that every resident who met the established clinical criteria was entitled to testing.

The Court (per Justice A. Stein Justice, I. Amit and Justice A. Baron concurring) dismissed the petition in limine for lack of a clear cause. According to the Court, in order to “flatten the curve”, the State must try to make efficient use of the available medical, logistical and human resources at its disposal, on the basis of necessary, accepted economies of scale. The testing centers were set up in order to maximize the availability of testing for people who met the clinical criteria. As long as the system was organized on the basis of relevant professional criteria, the Petitioners’ claim of discrimination could not stand, inasmuch as “discrimination does not mean a lack of equality in the technical sense, but rather treating different people differently for reasons that are not relevant to the matter […] Therefore, setting up multiple testing centers in a virus-infected area, or an area densely populated by people of higher susceptibility to infection and death, does not discriminate against luckier persons who do not require more than a single testing center.”

The Petitioners admitted that they enjoyed the same entitlement to testing, and were not discriminated against in that sense. Their main claim was that the location of the testing centers limited access because it made transportation to them more difficult and more costly. That being the case, the Court was of the view that the harm caused by the higher transportation costs was insignificant in comparison to the benefit of making testing more widely available. Ultimately, the Court was being asked to intervene in matters of logistics, which are matters of professional discretion to which the Court normally defers.

2.            HCJ 2471/20 Adalah – Legal Center for Arab Minority Rights v. Ministry of Health (April 16, 2020)

This petition asked that the Court order the Respondent to make Covid-19 testing available to the residents of Kfar Akeb and the Shuafat refugee camp in East Jerusalem, inter alia, by establishing “drive-through” testing centers or mobile testing units.

The Ministry of Health responded that two drive-through testing centers had been established in East Jerusalem, Magen David Adom (MDA) had trained EMTs from the Red Crescent Society to perform in-home testing, designated testing clinics were opened in East Jerusalem, and such clinics were planned for both Kfar Akeb and the Shuafat camp.

The Court (per Justice Y. Elron, Justices I. Amit and A. Stein concurring) dismissed the petition for lack of cause, citing the Court’s judgment in HCJ 2359/20 (above) in regard to “economies of scale” and deference in matters of professional discretion.

Prohibitions upon Public Worship

HCJ 2394/20 B’emunato Yihye v. Prime Minister (April 16, 2020)

This judgment concerned three joined petitions challenging the regulations under the Emergency Regulations (Novel Coronavirus – Restrictions upon Activity) (Amendment no. 2), 5780-2020, and Public Health Order (Novel Coronavirus) (Sheltering in Place and Miscellaneous Provisions) (Temporary Order) (Amendment no. 12), 5780-2020, to prohibit public prayer. The Petitioners asked that they be permitted to conduct public prayer services, at least in open spaces outside synagogues, while maintaining appropriate social distancing.

One of the Petitioners argued that promulgating the Regulations was ultra vires, and that following the swearing-in of the 23rd Knesset, the restrictions should have been established in primary legislation. All the Petitioners challenged the exercise of discretion, arguing that the restrictions disproportionately infringed freedom of religion and worship, and noted that the restrictions in regard to public spaces were applied differently in other contexts, such as the right to demonstrate, and the right to access the courts.

In dismissing the petitions, the Court (per Justice U. Vogelman, Justice M. Mazuz and Justice A. Stein concurring) held that the restrictions under the Public Health Order did not deviate from the provisions of sec. 20 of the Public Health Ordinance, 1940, and there were no grounds for the claim of a deviation from authority. As for the Regulations, the Court cited its judgment in HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, and held that promulgating the Regulations was within the Government’s authority at the present time. As for any intention to maintain the restrictions in the future and the need to establish them in primary legislation, the Court expressed its presumption that the Government would act in accordance with the principles outlined by the Attorney General, although it refrained from deciding the matter, noting that the question was pending in another case (HCJ 2399/20).

As for the exercise of discretion, while there was a clear infringement of freedom of religion and worship, the right to worship in private remained intact, and Jewish law recognized that the need to save lives outweighed the obligation of public prayer, as was decided, inter alia, by the Chief Rabbi of Israel. In any case (citing HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, para. 23) the violation of freedom of religion and worship fell within the parameters of the subtests for proportionality, and there was a clear rational connection between the means and the purpose.

As for the claim of discrimination between public prayer and the right to demonstrate and the right to access the courts, the Court found that the Respondents’ had presented relevant considerations for making the distinction. Public demonstrations at a time of emergency, when extreme steps were being taken by the Government, should not be completely prohibited, such events are temporary and of limited scope when compared to public prayer, and there is a police presence at demonstrations, which limits the possibility of non-compliance with the restrictions imposed by the Ministry of Health. As for access to the courts, legal proceedings are held in accordance with special restrictions, and moreover, under Basic Law: The Government, emergency regulations cannot prevent access to the courts.  As opposed to the above, hundreds of thousands of people pray three times a day. Effective enforcement is not practical or possible on such a scope.  Therefore, there were no grounds for intervention.

Visiting Cemeteries on Memorial Day

HCJ 2705/20 Natan Smadar v. Prime Minister (April 27, 2020)

This petition challenged sec. 4 of Emergency Regulations (Novel Coronavirus – Restriction of Activity) (Amendment no. 6), 5780-2020, which prohibited entry to cemeteries on Yom Hazikaron – Memorial Day for the Fallen Soldiers of the Wars of Israel and Victims of Actions of Terrorism (hereinafter: Yom Hazikaron). The amendment created the following exception to the general requirement of sheltering-in-place, as follows:

(16)        Visiting a military cemetery, a military section or military grave located in a civilian cemetery, or the grave of a person who fell in Israel’s wars, even if not a military grave, a memorial to the fallen of Israel’s wars, terror victims, or at Yad Lebanim [the organization that supports bereaved families in cooperation with the Defense Ministry and official government bodies – ed.].

While the amendment created an exception to the general rule, the exception would remain in effect only until 4 PM on April 27, 2020, the eve of Yom Hazikaron.

The Petitioner argued that Amendment 6 imposed restrictions that required primary legislation, was ultra vires the Government’s authority, and that it was, in any event, unreasonable and disproportionate, and that its purpose could have been achieved by less harmful means, such as requiring that visitors to the cemeteries wear masks and observe social distancing.

In denying the petition, the Court (per Justice I. Amit, Justices Y. Willner and Justice O. Grosskopf concurring) noted that prohibiting bereaved families from visiting cemeteries on Yom Hazikaron constituted a clear violation of freedom of movement, as well as of freedom of expression and autonomy. However, the current crisis “pits the right of privacy against the right to life and health of people and of the entire public – a life-threatening danger in the plain sense – and a real fear for Israel’s economy” (HCJ 2109/20 Shachar Ben Meir, Adv. v. Prime Minister, para 4 of the opinion of Justice N. Sohlberg). Nevertheless, that is not sufficient to decide the issue. “Even when the coronavirus moves through our streets, the muses are not hushed and parliamentary and judicial review do not stand silent. Particularly at this time of national emergency, the finger must not be light on the trigger, and the violation of basic constitutional rights must be as proportionate and focused as possible” (HCJ 2491/20 Ramot Elon Community Council v. Government (April 14, 2020).

In HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, the Court noted that it is not the practice of the Court to intervene in matters of an agency’s policy, and this is particularly so in regard to professional considerations concerning public health. That is the case in regard to administrative decisions, and all the more so in regard to a law. The point of departure for examining the constitutionality of a law is that a statute enacted by the Knesset expresses the will of the public’s representatives, and as such, the Court must respect it. Thus, the Court will not easily determine that a particular law is unconstitutional (HCJ 5304/15 Israel Medical Association v. Knesset, para 74, per Deputy President E. Rubinstein). Arguably, this heightened caution in reviewing the constitutionality of statutes should be even greater in regard to emergency regulations, that can prevail over regular statutes.

In terms of the Limitations Clause in sec. 12 of Basic Law: Human Dignity and Liberty, the restriction serves a proper purpose. As for the rational connection, there would appear to be an international consensus that mass assemblies are a fertile ground for transmission of the virus. On Yom Hazikaron, the military cemeteries are filled to overflowing, largely by people who travel to the cemeteries in buses provided by the state, and the danger of mass infection is clear and immediate.

As for the less-harmful-means test, it is not sufficient to show that there is a less-harmful means, but that such means achieve the purpose to the same or similar degree (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance). The suggestion that access be limited to a representative of the family or members of the nuclear family presents a conjecture as to the number if people who will visit the cemeteries, and presents a possible real danger of mass transmission of the virus. How would such restrictions be enforced? Who would decide whether the deceased’s mother or widow be allowed? Moreover, some 70% of the bereaved family members are over the age of 70, which requires even more strict precautions. “There are situations in which choosing an alternative that is somewhat less harmful to the constitutional right may significantly lessen the realization of the purpose or its benefit, and it would, therefore, not be appropriate to require the legislature to adopt such a measure” (HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 280 (2002)). Lastly, the Regulations do provide a five-day window prior to Yom Hazikaron, when the bereaved can visit the cemeteries, which somewhat mitigates the infringement.

As for proportionality stricto sensu, one cannot exaggerate the pain of the bereaved families, but when viewed against saving lives and the state’s ability to return to normal gradually and safely, the Regulations meet this subtest that requires a proper relationship between the cost and benefit of the means.

Therefore, the arrangement established in Amendment no. 6 is not unconstitutional, and for all the sorrow and pain it raises, the petition must be denied.

Restrictions on attending Lag Ba’Omer Celebrations on Mount Meron

1.            HCJ 2931/20 B’emunato Yihye v. Government of Israel (May 10, 2020)

                This petition challenged emergency regulations restricting participation in the Celebration of Rabbi Shimon bar Yohai, held on Mount Meron on the eve of Lag Ba’Omer. The celebration traditionally comprises large crowds lighting bonfires. Due to the coronavirus epidemic, a decision was made to limit the number of participants. The decision limited the Celebration to the lighting of three bonfires, one by each of the religious communities that traditionally do so at the celebration on Mount Meron: the Ashkenazi-Hassidic community, the Sephardic community, and the Religious Zionist community. Each bonfire would be attended by 50 participants. Accordingly, the Ministry of Religious Services published an announcement to the relevant communities, asking those who wished to participate to request a permit to attend one of the bonfire lightings.

                Pursuant to that, the Government promulgated Emergency Regulations (Novel Coronavirus – Restrictions upon Activity) (Amendment no. 11), 5780-2020, which comprised various restrictions, among them a prohibition upon lighting bonfires throughout the country, and upon visiting and sleeping in the Mount Meron area, as well as various provisions in regard to the Celebration, as presented above. The Legal Advisor of the Ministry of Religious Services published a document on the Ministry’s website, detailing the criteria established for the Minister’s exercise of discretion in granting permits.

                The Petitioners challenged the Regulations for disproportionately violating their right to freedom of movement and freedom of religion, and for discriminating against various groups that traditionally participate in the Celebration. They further argued that the published criteria were not sufficiently clear and would lead to arbitrary decisions, and that the State should have published guidelines that would make it possible to hold the Celebration in the usual way, while observing the guidelines established by the Ministry of Health. They further argued that preventing people who wished to participate from attending the Celebration was disproportionate, particularly in light of the lifting of various restrictions in regard to educational institutions, factories and businesses. In addition, the Petitioners argued that families with three-year-old sons should be allowed to go to Mount Meron to participate in the traditional haircutting ceremony, bearing in mind that this is a one-time religious event that is limited by time and place.

                In its response, the State argued that the steps adopted were necessary to prevent the spread of the virus, that they properly balanced the need to safeguard public health and the protection of the basic rights of those who wish to participate in the celebrations.  The State emphasized that the Celebration of Rashbi Shimon bar Yohai is a mass event in which some 500,000 people usually participate. It is densely crowded, and requires months of police preparation. Thus, the Petitioners’ request that the celebration be conducted under the Ministry of Health’s guidelines is impractical. As for the criteria, due to the very short timeframe, the Minister was ultimately unable to examine individual requests.

The Court (Justice D. Barak-Erez, Justice U. Vogelman and Justice D. Mintz concurring) dismissed the petition for lack of a cause for intervention. As the Court stated in several cases, the spread of the coronavirus affects every area of life and required adopting exceptional steps (see:  HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister). The Court was satisfied by the State’s response that the decisions were intended to provide a sensitive response to all the conflicting interests. Ultimately, the Petitioners’ arguments did not focus upon the details, but rather upon the basic rationale of significantly restricting the number of participants (see:         HCJ 2705/20 Natan Smadar v. Prime Minister (April 27, 2020)).  While there is no ideal solution, the Government enjoys broad discretion in this area, and the Court will not intervene in that discretion.

2.            HCJ 2956/20 Natan Rosenblatt, Adv. v. Prime Minister (May 10, 2020)

                This petition sought an order nisi in regard to secs. 5A – 5C of the Emergency Regulations (Novel Coronavirus – Restrictions upon Activity), 5780-2020, limiting access to Mount Meron on Lag Ba’Omer. The Petitioners argued against the very use of emergency regulations in view of their “deathblow” to basic rights. They further argued that the cancellation of the Celebration of Rabbi Shimon bar Yohai did not meet the tests for proportionality, inasmuch as the threat of transmission of the virus could be eliminated by other means, such as by permitting access by automobile, while not permitted exiting the vehicles.

                The Court (per Justice D. Mintz, Justice U. Vogelman and Justice D. Barak-Erez concurring) dismissed the petition in limine for lack of a cause for intervention. As opposed to the claim of the Petitioners, the Regulations did not entirely prevent the lighting of bonfires on Mount Meron on Lag Ba’Omer, but permitted it in a limited fashion that would preserve the tradition and grant representation to the various congregations.

                The restrictions imposed were intended to prevent large assemblies and events, in order to prevent the spread of the coronavirus. The potential harm to public health is tremendous, and preventing assemblies is a significant, necessary means for preventing the spread of the virus. In reviewing the decisions of an administrative agency, the Court does not presume to place itself in the agency’s shoes, and decide matters that are in an area of the agency’s expertise (see: HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, para. 17 (April 7, 2020)).

                The Court concluded by quoting the Talmud (Yoma 85b): “The Torah said: Profane for his sake one Sabbath, so that he may keep many Sabbaths… He shall live by them [Lev. 18:5], but he shall not die because of them”.

3.            HCJ 2960/20 Yaakov Levin v. Government of Israel (May 10, 2020)

                This petition challenged sec. 5A(b) of the Emergency Regulations (Novel Coronavirus – Restrictions upon Activity), 5780-2020, prohibiting the rental of vacation units and guest rooms in Meron and its surroundings from May 7, 2020 to May 17, 2020.

                The Petitioners argued that prohibiting rentals of vacation units and guest rooms would devastate the source of livelihood of many families, particularly because the prohibition extends several days after Lag Ba’Omer. The Petitioners argued that imposing the closure for more than a week was based upon factually mistaken grounds, and that the regulations were promulgated without consulting the area’s residents. They further argued that limited use of the vacation units and guest rooms should have been permitted in a manner that would prevent congregating, and that an exception should have been made for first-degree relatives of Meron residents.

                The Court (per Justice U. Vogelman, Justice D. Barak-Erez and Justice D. Mintz concurring) dismissed the petition in limine for lack of a cause to the Court’s intervention. The Petitioners did not dispute that preventing large assemblies in the area of Rabbi Shimon bar Yohai’s gravesite is proper, and that the Regulations are proportionate in principle. They also did not challenge the interest in protecting human lives, which is realized by forbidding assembling and preventing large events (and see: HCJ 2931/20 B’emunato Yihye v. Government of Israel (May 10, 2020)). All of the Petitioners arguments concern the unjust harm they will incur as residents of Meron, inasmuch as they believed that renting guest rooms does not contradict the purpose of the Regulations.

                The Court found that there was a clear rational connection between restricting the possibility of lodging in Meron and the purpose of preventing crowds and stopping the spread of the virus. Even the Petitioners noted that people prefer coming to the guest rooms in Meron in this period, and that “the income in these days constitute a very significant part of the annual income of the residents”. In other words, the Petitioners do not deny that there is an inseparable connection between vacationing in Meron and the Celebration of Rabbi Shimon bar Yohai. Emergencies justify employing drastic means that would not be acceptable in normal times (HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, para. 1 (April 7, 2020); HCJ 2491/20 Ramot Elon Community Council v. Government, para 11 (April 14, 2020)). The need to provide a precise response that takes account of the present, constantly changing situation, does not permit consultation with everyone who may be affected by the decisions. These are not normal times, and the need to keep crowds away from the grave justifies even the infringement of the rights of the residents of Meron. As for alternatives, it is not sufficient to show the existence of a less harmful alternative, but rather, the alternative must realize the purpose in the required manner (the Loewenthal case, para. 20).

Is the Fight against the Coronavirus a “War” for the Purpose of Compensation for Losses?

HCJ 2397/20 Doron, Tikotzky, Kantor, Gutman, Ness, Amit Gross, Advocates v. Government of Israel (May 12, 2020)

This petition asked the Court to order the Respondents to promulgate regulations by virtue of the Property Tax and Compensation Fund Law, 5721-1961, for the compensation of businesses harmed by the coronavirus epidemic.

Section 35 of the Property Tax Law defines “damage” as “war damage, indirect damage and drought damage”. “Indirect damage” is defined under sec. 36(a) as losses or loss of profits as a result of war damage or an inability to make use of property due to military activity. The Petitioners argued that the terms “damage” and “indirect damage” should be understood as comprising damage deriving from the coronavirus epidemic, inasmuch as governmental agencies defined the fight against the virus as a “war”, the Government adopted various steps characteristic of a war situation, such as involving the Israel Security Agency and the Mossad, and the Prime Minister had stated: “The battle is, first of all, a battle for life and public health […] we are now in a war with an unseen enemy […] as in any war, you want to locate the enemy, it is hard to locate this enemy because it is elusive”.  The Respondents argued that the petition should be dismissed inasmuch as significant arrangements had been made to aid businesses and the self-employed, and any arguments that the Petitioners might wish to make should be presented to the relevant authorities. Moreover, the current crisis requires a comprehensive economic policy, and it is unclear why the Petitioners think that such a policy should be achieved specifically by means of the Property Tax Law. In any case, the language and purpose of that law cannot be interpreted in the manner requested by the Petitioners.

In denying the petition, the Court (per Justice I. Amit, Justice D. Mintz and Justice O. Grosskopf concurring) held:

“It would appear that the Petitioners have latched on to the metaphors employed by public personages to describe the situation. Indeed, the viruses have already been on the fences. Indeed, the doctors are at the frontline of the struggle, have fought courageously with limited protective gear in order to protect each and every patient – they looked the virus in the eye, and it blinked. Nevertheless, we should still bear in mind that we are merely concerned with metaphors, and even a fitting metaphor is not necessarily a tool for legal interpretation”.

The language of the law clearly does not include damage as a result of the coronavirus crisis in the definitions of “war damage” and “indirect damage”, and the spread of the virus does not derive from hostile activity against Israel. Where the legislature sought to include damage that does not derive from hostile activity, it did so expressly by including “drought damage”.

Moreover, in regard to the marketplace and the economy, the executive and the legislature hold primary responsibility for establishing a comprehensive policy. The Court will refrain from ordering an administrative agency to exercise its legislative authority, and will certainly not replace the agency’s discretion with its own by establishing the content of the relevant legislative arrangement. If the Petitioners wish to change the law, the Court is the wrong address. “It is established law that this Court will not order an administrative agency to initiate an amendment to primary legislation. That authority is given to the executive branch and the legislative branch, and derives from the theory of separation of powers” (HCJ 6120/12 A. v. Minister of Defence, para. 2 and references there (Jan. 13, 2015).