The political turmoil: Even the laws have become temporary

Of the 74 laws enacted by the Knesset in the eight months since it was sworn in, no fewer than 50 are temporary provisions, which, even before the Corona crisis, had been turned into an increasingly popular legislative mechanism to circumvent the High Court of Justice and pave over internal divisions. How does it work and why should it trouble us? A Shomrim special report

Of the 74 laws enacted by the Knesset in the eight months since it was sworn in, no fewer than 50 are temporary provisions, which, even before the Corona crisis, had been turned into an increasingly popular legislative mechanism to circumvent the High Court of Justice and pave over internal divisions. How does it work and why should it trouble us? A Shomrim special report

Of the 74 laws enacted by the Knesset in the eight months since it was sworn in, no fewer than 50 are temporary provisions, which, even before the Corona crisis, had been turned into an increasingly popular legislative mechanism to circumvent the High Court of Justice and pave over internal divisions. How does it work and why should it trouble us? A Shomrim special report

Ze’ela Kotler Hadari

The Knesset, Israel's parliament. Photo: Shutterstock

November 2, 2020

Summary

J

ustice Menachem Mazuz appeared displeased. "How long does a temporary provision remain temporary?" he asked Yael Morag, the attorney representing the state at a High Court of Justice hearing in August. "This temporary provision has become a fixed provision, and not a word is being said about its expiration," Mazuz added.

The temporary provision that was being discussed by Israel’s highest court - which allows security guards to carry their work-issued firearms outside of their place of employment - has been repeatedly extended for the past five years, at the sole discretion of the public security minister. According to the provision, security guards are entitled to take their firearms home after their shifts, rather than leave them in the hands of the security company until they require them for work again. The petition to rescind the provision was submitted to the High Court by Gun Free Kitchen Tables (GFKT), a coalition of feminist, civil society and human rights organizations working to promote gun control in the public and private sphere.

"At least a dozen women were murdered in Israel during the first half of 2020," says Rela Mazali, GFKT’s co-founder and project coordinator. "Five of the victims were shot to death, two with licensed firearms and three with unlicensed ones. Four of them were killed during the full or partial [coronavirus] lockdown."

Protesters in front of the high court calling to cancel the temporary provisions allowing security guards to carry their work-issued firearms outside of their place of employment. Photo: Uziam Sapir

This number has risen since to 19, and aid centers are reporting an ever-increasing level of distress, brought on by the lockdown policies and intense financial and emotional stress.

The tenure of the 20th Knesset (2015-2019), the last stable parliament before the political turmoil in which Israel then found itself, saw 100 temporary provisions enacted. That translated into around 16 percent of the 625 laws passed by that Knesset. The current Knesset has broken all records, with temporary provisions comprising no less than 50 of the 74 laws passed thus far.

"These murders are the proverbial tip of the iceberg, of a widespread phenomenon whereby women and families are living under the threat of a firearm that is freely accessible to a violent family member," Mazali says. "The temporary provision, which has been renewed again and again without anyone collecting data on its implications, is creating a lax firearms policy. When a temporary provision is in place, the minister can do whatever he pleases without any public debate on the matter."

In early November, Public Security Minister Amir Ohana will have to decide whether to extend yet again the provision, which was initiated by his predecessor at the ministry, Gilad Erdan. Last summer, Ohana justified extended it by saying that the impending annexation of the Jordan Valley increased the need for weapons among Israel’s citizens. Since then, of course, annexation has been dropped from the agenda in favor of normalization of ties with the United Arab Emirates, so it will be interesting to keep an eye on the updated arguments.

Meanwhile, setting aside a discussion of this or any other temporary provision, and without detracting from its importance, this is an important legislative issue that needs to come under greater public scrutiny.

A temporary provision, to put it simply, is a temporary law, with the essential difference between a provision and a regular law being the period of time for which they remain in effect. A regular law remains in force forever, or until a new law repeals it. A temporary provision has an expiration date, which the Knesset can decide to extend.

Prime Minister Netanyahu and Alternate Prime Minister Gantz. "Temporary provisions are sometimes used as a tool to overcome disagreements within the government itself" says Bar-Siman-Tov. Photo: Reuters

In terms of the formalities, the legislative process for a temporary provision is identical to the process for a regular law. Both have to clear the same hurdles - three or four readings in the plenum and a discussion in the relevant Knesset committee. In practice, however, temporary legislation can clear these hurdles more easily and quickly because of the perception that it is a temporary arrangement and sparks less opposition.

Former Labor Party MK Mickey Rosenthal believes the system is nothing but trouble. "Temporary provisions prevent the implementation of reforms and long-term policymaking," he argues. "It’s easier to enact a temporary provision because the Finance Ministry doesn’t like long-term commitments, and a temporary provision is legislation that doesn’t require additional manpower. A temporary provision isn’t supposed to replace legislation, but that’s what’s actually been happening, with newspaper headlines the following morning the principal concern. It’s a distorted system."

The tenure of the 20th Knesset (2015-2019), the last stable parliament before the political turmoil in which Israel then found itself, saw 100 temporary provisions enacted. That translated into around 16 percent of the 625 laws passed by that Knesset. The current Knesset, which has been in office since March 2020, has broken all records, with temporary provisions comprising no less than 50 of the 74 laws passed thus far.

Among the temporary provisions passed by the 23rd Knesset are amendments to the Basic Law on the Government (popularly known as the Norwegian law), the Tender Obligation Law, the Animal Welfare Law and the Aviation Services Law. In addition, there have been a slew of measures for dealing with the coronavirus crisis, as well as dozens more temporary provisions enacted over the past few years.

Some have been more inflammatory temporary provisions, like the amendment to the Citizenship and Entry into Israel Law that prohibits family reunification, the amendment to the Prevention of Infiltration Law, and laws concerning the conscription of yeshiva students; others have been less volatile, like the temporary provision aimed at granting hunting permits to dilute Israel’s crow population.

Former MK Rosenthal. Photo: Shomrim

In June, for example, the Knesset Internal Affairs and Environment Committee discussed extending the validity of a temporary provision from 2011 that allows local authorities to collect a security levy from their residents. MK Yulia Malinovsky (Yisrael Beiteinu) tried to protest the manner in which residents of local authorities were being slapped with an additional tax. "You may as well just make it a permanent provision and stop pretending the way you have been for the past 11 years," she said. "This temporary provision has turned into something very convenient. They say: It’s a temporary provision, for a year and a half or two; it’ll change. But the temporary has become the permanent."

A law for everything

We’ve been witness to "temporary legislation on steroids" during the coronavirus pandemic, says Dr. Ittai Bar-Siman-Tov, a senior lecturer at Bar-Ilan University’s Faculty of Law and founding co-chair of the Israeli Association of Legislation. In 2019, Bar-Siman-Tov and his colleagues, Daniel Stauber and Gaya Harari-Heit, published a first-of-its-kind study on temporary legislation in Israel, with a second study on temporary provisions during the coronavirus period due to appear soon. According to Bar-Siman-Tov, professional literature abroad commonly refers to temporary legislation as rare and hardly in use, whereas in Israel, temporary provisions are used to enact significant and controversial laws.

A temporary provision, by definition, is supposed to serve a temporary need and come with an expiration date - often referred to as the ‘sunset clause.’ Israeli lawmakers, however, have demonstrated their creativity and come up with a unique approach in this regard too. "Usually, there’ll be a clause that stipulates a validity period of a defined number of months or years from the date of enactment," Bar-Siman-Tov says. "But our study found that the wording of the validity-period clauses in 68 laws passed as temporary provisions was used in various ways by lawmakers to create ambiguity vis-à-vis the period during which the law will remain in force."

Are the Knesset members aware of this? Not necessarily. "We were surprised to learn from reading the minutes of discussions on temporary provisions that some participants, including Knesset members, don’t realize that temporary legislation is legislation for all intents and purposes," Bar-Siman-Tov says. "Furthermore, we came across instances in which MKs explicitly stated that they would oppose a law were it a permanent one, but are willing to support it as a temporary provision."

Bar-Siman-Tov is well aware that the abundance of temporary legislation is largely down to the political and democratic crisis in which we find ourselves, compounded, too, by the coronavirus crisis. "Temporary provisions are a means that allows the government to overcome opposition in the Knesset," he says. "To a certain extent, therefore, they’re like a governance tool, a little like the Economic Arrangements Law. Two processes have been underway during this period: On the one hand, the government, like other governments around the world, has assumed additional powers and has weakened the parliament. The Knesset’s effectiveness has been undermined, and the government is trying to make it easier for itself with coronavirus regulations and temporary provisions. On the other hand, due to the political crisis, it’s the government itself, to a large extent, that isn’t functioning.

"One of the things we revealed in the study is that a temporary provision is sometimes used as a tool to overcome disagreements within the government itself, when ministries can’t come to an agreement, with the temporary provision serving as a compromise," Bar-Siman-Tov continues. "When the coalition is a cohesive and united one, it can usually pass whatever it wants; in the current reality, however, the plethora of temporary provisions is a reflection of the crisis in the government itself."

Dr. Ittai Bar-Siman-Tov: "The erosion of democracy is a slippery slope, and that’s what concerns us most. Experience around the world and comparative studies have shown how the undermining of democracy doesn’t come in the form of a dramatic revolution but in small steps that affect change. prompting the question: Which democratic mechanisms have the ability to restrict this? Studies from Hungary and Poland show how each step on its own can be justified and brushed off with: ‘What’s all the fuss about?’ But there’s a cumulative effect."

Dr. Bar-Siman-Tov. Photo: Bar-Ilan University

According to Bar-Siman-Tov, if the Knesset appeared to be treading cautiously at the start of the crisis in terms of the validity periods of the temporary provisions, as the crisis lengthens, so, too, do the validity periods of the laws. "A review of the temporary legislation during the current period shows that for the most part, no mechanism for extending validity was stipulated at all," he says. "And the few mechanisms that were stipulated in some of the temporary provisions determine that extensions will be made by the government, with minimal Knesset involvement."

An example of this is the repeated extension of the temporary provision that allows the Shin Bet security service to track the cellphones of citizens as part of the fight against COVID-19. The provision was approved initially for a period of 21 days only, but after the three weeks passed by, the law was extended for a longer period and will remain in effect, finally, until January 20, 2021.

The same thing happened with the temporary provision under which criminal detainees don’t have to be brought to court but can participate in hearings on their cases by means of phone or video calls. The provision was only meant to be in force for a few weeks, but when that period expired, it was extended for another full year. "There’s no correlation between the extent of the human rights violation, the violation of the rights of a detainee and defendant, and the extreme arrangement proposed here," MK Yousef Jabarin (Joint List) lamented during a discussion on the law in the Knesset Constitution, Law and Justice Committee in June. "It’s simply astonishing," he said, "how the government can decide, almost exclusively, to extend the validity of the law for a year."

Former Labor Party parliamentarian Mickey Rosenthal, for his part, believes the system is nothing but trouble. "Temporary provisions prevent the implementation of reforms and long-term policymaking," he argues. "It’s easier to enact a temporary provision because the Finance Ministry doesn’t like long-term commitments, and a temporary provision is legislation that doesn’t require additional manpower. A temporary provision isn’t supposed to replace legislation, but that’s what’s actually been happening, with newspaper headlines the following morning the principal concern. It’s a distorted system."

Bypassing the High Court

The first temporary provision in Israel, enacted in 1949, allowed for the president's powers to be transferred to the Speaker of the Knesset while the former was abroad. A deputy for the president had yet to be arranged at the time, and the president’s upcoming trip overseas sparked the need for the temporary provision.

The most famous example of a temporary situation that has become permanent in Israel is the government's declaration of a state of emergency in 1948, which has been extended by the Knesset every year since. The Corona Law, meanwhile, allowed the government to declare a medical state of emergency as well. Now, in effect, Israel finds itself in a special state of emergency on top of a temporary-permanent one.

During the first 30 years following Israel’s establishment, the Knesset passed just a few dozen temporary laws; but from the end of the 1960s onwards, the number of temporary provisions began to rise consistently. The steepest increase occurred in the first decade of the 21st century, during which 165 temporary laws were enacted. And the upward trend has continued over the past decade too, with more than 170 temporary laws enacted. "Over the past decade, in fact," says the study led by Dr. Bar-Siman-Tov, "more temporary laws have been enacted than were passed during the first 40 years of the Knesset's existence."

The authors of the study point out the "psychological effect" of temporary legislation. "When a Knesset member says to himself, ‘Okay, it’s temporary,’ his intuition tells him that if it’s short-term, it’s less damaging, and there’s also the assumption that the law will come up for another vote again anyway, within a year or two," Bar-Siman-Tov says. "The psychological effect also plays a part when it comes to extending the validity of the temporary provision. A Knesset member will tell himself that there’s already a precedent, the law’s already been approved once, so it’s easy to approve it again."

But there are other reasons for the abundance of temporary laws too, more topical ones if you like, with one being the fact that temporary provisions can sometimes be the government’s way of avoiding expected criticism from the High Court of Justice. "We found statements by Knesset members to the effect that temporary legislation is not only a means of staving off parliamentary and public criticism, but also a way of dealing with future judicial criticism and the risk of the High Court of Justice repealing the law," Bar-Siman-Tov says.

A demonstration in Tel-Aviv. The law allowing the security service to track the cellphones of citizens is a product of temporary provision. Photo: Bea Bar Kallos

Prof. Yaniv Roznai, an expert in constitutional law and co-chair of the Israeli Association of Legislation, believes that "if a law violates a constitutional right, it must stand up to the proportionality test." And according to Roznai, "Knesset members have learned how the system works and have realized that if temporary provisions have an effect on the proportionality test and give rise to the chance that the law will be proportionate and won’t be rejected by the High Court of Justice, then let’s enact laws that are perceived as problematic as temporary provisions. As such, they’ll be easier to digest by the political and judicial establishment."

Bar-Siman-Tov adds that each case must be examined on its own merits in terms of the correlation between the temporary nature of the law and its proportionality. "For the sake of illustration, if we want to enact an emergency law that stipulates that in an effort to combat a terrible spate of thievery, anyone caught stealing will have their hand amputated, some people will say that’s going too far, but because there’s a severe problem, we’ll enact a temporary provision for two months. But the fact that the law is just a temporary one and will expire does little to help a man whose hand is chopped off in the interim because the damage he suffers is irreversible. The temporary nature of the norm doesn’t make the injury temporary.

"On the other hand, if, for example, an individual’s driving license is revoked for life or just for a month, it makes a difference, and in such a case, the temporary nature of the provision plays a part. So the first question is: Does the temporary nature of the law make it less injurious and therefore sufficiently justified, despite the violation of rights to some extent? We need to be wary, of course, and refrain from assuming that the temporary nature of the law in and of itself makes the law constitutional and justified."

The lesser of two evils?

It’s important to note that a temporary provision is sometimes a solution that can be defined as the lesser of two evils for a democracy during a state of emergency. On the issue of the Shin Bet’s phone tracking, for example, the High Court believed that it was better to anchor the security service’s actions in temporary legislation rather than a government decision to impose emergency regulations. As a rule, a temporary provision is more democratic than an emergency regulation because the former is subject to a parliamentary procedure, while the latter is determined by the government without the need for supervision or a Knesset vote.

"The million-dollar question is: Are there better alternatives to a temporary provision for a democracy in times of emergency?" Bar-Siman-Tov says. "A temporary provision is a solution because it is legislation that is enacted by the public’s elected Knesset members for a temporary period as a signal to us that when the crisis passes, there’ll be no justification for such arrangements, which are far-reaching, to remain in the law book. From this perspective, temporary provisions are preferable to emergency regulations because it’s better for the Knesset to be involved and to legislate. Nevertheless, the concern we wish to highlight is that for temporary provisions to fulfill their purpose, the Knesset must find a way to create an orderly mechanism for them."

Prof. Yaniv Roznai, an expert in constitutional law believes that "Knesset members have learned how the system works and have realized that if temporary provisions have an effect on the proportionality test and give rise to the chance that the law will be proportionate and won’t be rejected by the High Court of Justice, then let’s enact laws that are perceived as problematic as temporary provisions. As such, they’ll be easier to digest by the political and judicial establishment.

Prof. Roznai. Photo: Shomrim

According to the researchers, this mechanism should include two elements - extension and evaluation. "To allay concerns regarding repeated automatic extensions, the validity clause has to be sharpened and anchored. Sometimes, the government is allowed to extend the temporary provision, and sometimes all it takes is just a single vote in the plenum or a committee, and that’s problematic. The power to extend a temporary provision - for all intents and purposes, a law - must remain with the Knesset," the study notes.

"And the extension clause should be supplemented by an evaluation clause," Bar-Siman-Tov stresses. "We believe that every temporary law requires a clause that establishes a mechanism for reviewing its effects and reporting to the Knesset, so that the legislature can then come to an informed decision, based on facts and figures, when called on to extend the temporary provision or turn it into permanent legislation.

High Court justices. In general, a temporary provision is more democratic than an emergency regulation. Photo: Reuters

"Ideally, what’s required is a parliamentary body with the tools to do so. And barring this, for however long, the executive branch of the government can be expected to perform the task, with explicit instructions in terms of the data and indices it needs to collect and how often it’s required to report to the Knesset. Today, there are instances in which a temporary provision is about to expire and on the morning of the debate, they say to the Knesset members: Here’s the data.

"The erosion of democracy is a slippery slope, and that’s what concerns us most. Experience around the world and comparative studies have shown how the undermining of democracy doesn’t come in the form of a dramatic revolution but in small steps that affect change, prompting the question: Which democratic mechanisms have the ability to restrict this? Studies from Hungary and Poland, for example, show very nicely how each step on its own can be justified and brushed off with: ‘What’s all the fuss about?’ But there’s a cumulative effect."

According to Bar-Siman-Tov, a temporary provision should require the government to return to the Knesset after a brief period and present a review of what has happened since its enactment. "If the coronavirus has heralded the era of the temporary provisions, then let it at least be their era of glory," Bar-Siman-Tov says. "We aren’t sweepingly opposed to temporary provisions, but we do believe that the improper use of temporary provisions is very dangerous. During the coronavirus crisis, they may just be the lesser of two evils."