The Supreme Court sitting as a High Court of Justice
HCJ
2109 / 20
HCJ
2135/20
HCJ 2141/20
Before:
The Honorable President E. Hayut
The Honorable Deputy President H. Melcer
The Honorable Justice N. Sohlberg
The Petitioner in HCJ 2109/20:
Adv. Shachar Ben Meir
The Petitioner in HCJ 2135/20:
The Association for Civil Rights in Israel
The Petitioners in HCJ 2141/20:
1.
Adalah – The Legal Center for Arab Minority Rights in Israel
2.
The Joint List
v e r s u s
The Respondents in HCJ 2109/20:
1.
The Prime Minister
2.
The Government of Israel
3.
The Israel Security Agency
4.
The Israel Police
5.
The Ministry of Health
6.
The Attorney General
7.
The Privacy Protection Authority at the Ministry of Justice
8.
The Knesset
9.
MK Gabi Ashkenazi
The Respondents in HCJ 2135/20:
1.
The Prime Minister
2.
The Government
3.
The Israel Security Agency
4.
The Israel Police
5.
The Ministry of Health
The Respondents in HCJ 2141/20:
1.
The Prime Minister
2.
The Israel Security Agency
3.
The Israel Police
4.
The Ministry of Health
Petitions to grant an order nisi and an interim order
Date of Sessions:
23 rd
of Adar, 5780 (March 19, 2020)
On behalf of the Petitioner
in HCJ 2109/20:
Himself
On behalf of the Petitioner
in HCJ 2135/20:
Adv. Dan Yakir; Adv. Gil Gan-Mor
On behalf of the Petitioners
in HCJ 2141/20:
Adv. Hassan Jabareen
On behalf of Respondents 1-7 in
HCJ 2109/20, the Respondents
in HCJ 2135/20, and the
Respondents in HCJ 2141/20:
Adv. Reuven Eidelman; Adv. Shosh Shmueli
On behalf of Respondents 8-9
in HCJ 2109/20:
Adv. Avital Sompolinsky
Interim Decision
1.
The three above-referenced petitions are directed against the Government’s decision to promulgate two sets of emergency regulations: (1) the promulgation of the Emergency Regulations (Authorization of the Israel Security Agency to Assist in the National Effort to Reduce the Spread of the Novel Corona Virus), 5780-2020 (hereinafter: the ISA Regulations ); (2) the promulgation of the Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations ). The regulations allow the gathering, processing and use of “technological information” of persons who have been infected with the nCoV virus (hereinafter: the Virus ), in order to combat the outbreak of the Corona pandemic.
2.
In a hearing that was held on the petition today – March 19, 2020 – important legal matters were raised, which address, inter alia , the lack of parliamentary oversight on the process of promulgating the regulations and on their implementation, as well as constitutional questions that require review.
3.
The petitions in HCJ 2135/20 and in HCJ 2141/20 were submitted close to the time when the Respondents were required to submit their response to the petition in HCJ 2109/20, which was filed on the previous day. Therefore, the Respondents did not have sufficient time prior to the hearing on the petitions to formulate a written response to the arguments that were raised in those two petitions. The Respondents requested that we allow them to file a complementary argument in this context, and due to the urgency of the matter, we instruct that said argument shall be filed by Sunday, at 17:00. In the updating complementary argument, the Respondents shall address the following principle questions:
(a)
Does the declaration of a state of emergency pursuant to Section 38 of the Basic Law: The Government also relate to states of emergency that do not derive from security reasons?
(b)
Is it possible to grant the Israel Security Agency powers to operate in a field that is not related to the State’s security by virtue of Section 7(b)(6) of the Israel Security Agency Law, 5762-2002?
(c)
Does Section 39(d) of the Basic Law: The Government, which prescribes that “Emergency regulations may not […] allow infringement upon human dignity” impose an absolute restriction on infringing the right to human dignity or is such an infringement subject to the conditions prescribed in Section 12 of the Basic Law: Human Dignity and Liberty?
4.
At this stage we are issuing an interim order instructing as follows:
a.
As to the ISA Regulations – if by Tuesday, March 24, 2020, at 12:00, the Knesset does not establish the relevant committees to enable parliamentary oversight of these regulations, it will not be possible to use the powers granted by virtue thereof, from such time and until further decision.
b.
Without derogating from sub-section (a) above, the ISA Regulations shall be implemented at this stage, solely in order to locate those who were around persons with a positive laboratory result for nCoV , and in accordance with the classified guidelines that were presented to us, with the Petitioners’ consent, ex parte , and which were approved by the Attorney General.
c.
If a decision is reached regarding the imposition of a general lockdown before Tuesday, March 24, 2020, it will then be possible to reexamine the need to implement the powers pursuant to the ISA Regulations, and the interim order’s compatibility to such a state of affairs.
d.
At this stage, and until further decision, the powers granted by virtue of the Police Regulations are not to be exercised. In this context, it shall be noted that during the hearing, the Respondents informed us that at this stage the procedure mentioned in Section 4(a2) of the Criminal Procedure (Enforcement Authorities – Communications Data) Law, 5768-2007 (hereinafter: the Communications Data Law ), which was added to this law pursuant to the Police Regulations, has not yet been finalized, and therefore in any event, these regulations have not yet been put to use. Additionally, it was clarified that at this stage there is no intention to use the power granted to the Police by virtue of these regulations in Section 4(a1)(1)(a) of the Communications Data Law.
5.
Once the material mentioned in paragraph 3 above is gathered, we shall decide regarding the further handling of the petitions, in their entirety.
Delivered today, the 23 rd of Adar, 5780 (March 19, 2020).
THE PRESIDENT
THE DEPUTY PRESIDENT
JUSTICE