The Struggles of Democracy against the 'New Terrorist' - The COVID-19 Pandemic: Separation of Powers - The Israeli Experience

2 Hong Kong Journal of Law and Public Affairs 106 - 115 (2020)

12 Pages Posted: 11 Jul 2023

See all articles by Dalit Ken-Dror Feldman

Dalit Ken-Dror Feldman

University of Haifa - Faculty of Law

Emanuel Gross

University of Haifa - Faculty of Law

Date Written: October 20, 2023

Abstract

The Coronavirus disease 2019 (COVID-19) caught the world by surprise. The World Health Organization (WHO) declared the COVID-19 on 30th January 2020 as “Public Health Emergency of International Concern (PHEIC)” and as pandemic on 11th March 2020.

Suddenly, governments around the world had to stop their daily routine and to deal with a new and worldwide pandemic. Every country dealt with the new situation in a different way. However, most of the countries used tracing apps or other surveillance technology to follow the chains of infections and to stop them as soon as possible.These tracking techniques raised questions about the ability of democratic countries to trace their residents without reasonable suspicion of any criminal or terrorist offense.

The COVID-19 caught Israel after 3 rounds of elections in which no certain, clear decision was made by the public. The pandemic was what had forced the politicians to establish a new government with a Prime Minister and a Substitute Prime Minister who will replace him after one year and a half. In addition, the current Israel Prime Minister is facing criminal procedures. True as of May 2020, Israel has a large government that most of them are also part of the legislative authority. There is also a coalition discipline principle that forces the opinion of the government on its members of the parliament. In light of these circumstances, there is almost no separation of powers between the legislative authority (the Knesset, the Israeli Parliament) and the executive authority (theGovernment). Moreover, the status of the Judiciary authority is being demoralized and public faith in courts is reduced.

In this article, we discuss Israel’s experience during the COVID-19 pandemic and the need to trace the chains of infections as soon as possible, within the democratic frame. We show that even though the pandemic caught Israel in a delicate situation to its democracy, the basic principles of a democratic state – the separation of powers and checks and balances – are still present in the way Israel handled a certain aspect of the pandemic so far – the tracking of chains of infections. We focus on the question of checks and balances. We review the democratic process of legislation concerning the use of mobile tracking to find the potential chain of infection of verified patients. We show that despite all the obstacles the democratic game is preserved more or less, at least on paper. We show the importance of the separation of powers and mutual supervision. We call to preserve this basic and important principle especially in times when democracy needs to defend itself not only against terrorism but against a complicated, invisible enemy.

Keywords: COVID 19, regulations, Defensive Democracy

Suggested Citation

Ken-Dror Feldman, Dalit and Gross, Emanuel, The Struggles of Democracy against the 'New Terrorist' - The COVID-19 Pandemic: Separation of Powers - The Israeli Experience (October 20, 2023). 2 Hong Kong Journal of Law and Public Affairs 106 - 115 (2020), Available at SSRN: https://ssrn.com/abstract=4488183

Dalit Ken-Dror Feldman (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

Emanuel Gross

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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