The state of emergency
Jerusalem Post editorial
(November 22) - Yesterday, the cabinet took one small step toward
eliminating an embarrassment to Israeli democracy: the existence
of a legal "state of emergency" since the day the state was born.
After 51 years, fixing this situation may not seem to be a high priority,
but the process should not be allowed to drag out longer than
necessary.
At the request of Justice Minister Yossi Beilin, the cabinet decided
to recommend to the Knesset extending the existing state of
emergency for only six months when it expires on January 26, 2000.
The cabinet action came in the wake of an October 4 ruling by the
High Court of Justice, which ordered the Knesset to explain why
the state of emergency should not be revoked.
The implications of ending the state of emergency are both practical
and symbolic, or psychological. On psychological level, its ending will
say to Israelis and the world that Israel is no longer a country under
siege. On a practical level, the end of the state of emergency will force
the revision or abandonment of dozens of laws.
The two most significant practices that will have to be rethought are
administrative detentions and "back-to-work" orders for strikers in
critical economic sectors. In some democracies, such as the US, some
public sector strikes are simply prohibited by law, without any reference
to a state of emergency. Israel will have to decide under what conditions
strikes in vital sectors will be restricted even after the state of emergency
is lifted.
Concerning administrative detentions, the lifting of the state of emergency
will force a similar reckoning, which should include reconsideration of
another outdated piece of security-oriented legislation: the 1945 Defense
(Emergency) Regulations.
These Regulations were issued by the then-ruling British Mandatory
government of Palestine in the context of World War II, under great
protest from the Jewish leadership of the time. A few years later, the
new State of Israel was indeed at war, and kept the regulations on the
books.
But even after the War of Independence ended and until today, the
defense regulations grant far-reaching powers to the government
practically unheard of in democratic countries.
Until 1979, the military could detain people for periods of six months
without charge, and extend the detentions almost indefinitely. After
that year, the power of administrative detention was established in an
Israeli law in more limited form. Under the new law, the military could
only detain people during a state of emergency, and only for 48 hours,
after which the detention could be extended for three months by court
order.
If the state of emergency is lifted next July, administrative detention
as an institution will either fall by the wayside, or be reinstituted under
non-emergency Israeli law.
As of now, the Justice Ministry is expected to recommend to the
Knesset that administrative detention not be dropped entirely as a
tool, at least temporarily, even after the state of emergency is lifted.
The thinking behind this is that Israel is not at war, nor do the existing
security threats justify a state of emergency. On the other hand,
Israel still faces security threats beyond those normally faced by a
nation fully at peace. As a result, there is an impetus to try to have
our cake and eat it too: eliminate the state of emergency and, for
now, keep administrative detention.
The Association for Civil Rights in Israel objects to this approach,
arguing that the power of administrative detention should be limited
to a true state of emergency, which does not currently exist. Like the
debate over whether to allow the General Security Service to use
"moderate physical pressure" in interrogations, this is one of the
tough dilemmas of a democracy facing the threat of terrorism.
When faced with such a dilemma, absolutism is not a useful starting point.
It should not be assumed that the draconian tools provided by the
defense regulations or by the state of emergency - including the powers
of censorship, banning organizations, and administrative detention - are
efficient tools in the fight against terrorism. Censorship, in particular, in
the age of the Internet, has become, in most cases, obsolete to the point
of ridiculousness. The effectiveness of other tools that compromise civil
rights has also been seriously questioned, and realistic alternatives
exist in some cases. By the same token, even after every effort has been
made to avoid them, some less than desirable methods used judiciously -
not as a routine practice - may need to be at the disposal of those who
must confront the still daily threat of terrorism.
Even if some compromises must be made, it is important that a long
overdue commitment is being made to end the state of emergency. This
commitment should be coupled with an equally important effort to finally
strike the 1945 defense regulations from the law books. Upholding civil
rights should not be seen as a threat to our security, but as a contribution
to the ultimate source of our strength as a nation, our democratic values.