(Apr. 15, 2021) On April 4, 2021, Israel’s Supreme Court voided a regulation that had been in effect from October 1 to 13, 2020, and served as a basis for issuing fines against persons who participated in demonstrations against the prime minister and the Israeli government in violation of its conditions. (HC 5469/20 National Responsibility – Israel My Home v. Israeli Government.) The regulation limited participation in demonstrations to locations within 1,000 meters (about 0.62 miles) from demonstrators’ homes (limitation on venue), under conditions of social distancing of two meters (about 6.56 feet), and subject to limits of 20 people in an open public space or 10 people in buildings.
Israel faced its second wave of the coronavirus outbreak from July through October 2020. Meanwhile, public protests against the prime minister and against the government’s handling of the pandemic, which began in early 2020, continued. The main centers of demonstrations were the prime minister’s official residence on Balfour Street in Jerusalem, as well as in nearby Paris Square; the prime minister’s private residence in Caesarea; and bridges and intersections across the country. On July 7, 2020, the Special Authorities to Combat the Novel Coronavirus (Temporary Provision) Law, 5780-2020 (Special Authorities Law) went into effect. The law authorized the government to impose restrictions on civic and economic activity. In September 2020, as part of the steps taken by the government to reduce morbidity, the government imposed a full lockdown. On September 30, 2020, the Knesset (Israel’s parliament) amended the Special Authorities Law to allow the government to declare a “special state of emergency” and issue restrictions on participation in demonstrations, prayers, or religious ceremonies. Subsequently, the prime minister amended regulations that had previously been issued for implementation of the Special Authorities Law by stipulating the limitation on venue and social distancing described above.
The petitioners to the Supreme Court alleged that the Special Authorities Law and the limitations on demonstrations issued under the law were unconstitutional.
While unanimously rejecting the claims against the constitutionality of the Special Authorities Law, the court, by a vote of 8–1, held that the law was a temporary provision that delegated to the government powers to address a specific medical emergency—the coronavirus pandemic—while establishing parliamentary oversight mechanisms. In considering the law’s provisions in view of the circumstances that led to the law’s enactment as primary legislation, the court found no basis to conclude that the Special Authorities Law had disproportionally harmed constitutional rights in a way that could justify its cancellation. (HC 5469/20, main decision by Court President Justice Esther Hayut, para. 33.)
The court further rejected the respondents’ claim that the petition to void the regulation subjecting demonstrations to limitations on venue was moot as the regulation was no longer in effect. According to Hayut, on the basis of the court’s previous rulings, a refusal to entertain a case of principal importance that may reoccur but is inherently short could in fact “shield the matter from judicial review.” Hayut additionally noted that fines had been issued to demonstrators who had violated the regulation. (Paras. 41–44.)
Hayut held that the limitation on the number of participants in the context of social distancing was legitimate but the limitation on venue was not. The court had previously recognized that
[t]he message that the demonstrators want to convey is not expressed only in their [vocal] expressions and in the signs they carry. The choice of the location of a demonstration reflects a separate, independent, important statement by the protesters, which is subject to the protection of freedom of demonstration and expression. (Para. 54.)
Locating demonstrations in front of the official residence of an elected official enjoys “special importance in the modern age, since it is designed to attract the attention of decision makers and of the public.” Prohibiting protests at this location therefore severely harms the right to demonstrate. The right to demonstrate is not an absolute right, and may be balanced against other fundamental conflicting interests. Considering the importance of the right to demonstrate, however, it could be restricted only “when there is a near certainty of severe harm to public order or to public safety, and only to the extent required [to prevent such harm].” The limitation on venue was not proportional, and might have been replaced by alternative measures to achieve the objective of social distancing. Additionally, there was no clear proof of widespread infection at demonstrations. No benefit could have thus been associated with the limitation, and certainly not one that greatly exceeded the damage caused by the violation of the basic right to demonstrate. (Paras. 56–63.)
The court rejected the petitions against the validity of the Special Authorities Law, as well as against the regulation that imposed limits on the number of participants. However, the court declared unconstitutional and voided the regulation that imposed a limitation on the location of demonstrations. The court also declared that all fines imposed under this limitation were void and ordered that those who had paid fines be reimbursed.