Setting sweeping restrictions on Israeli citizens’ ability to return to the country from overseas is extremely problematic from a constitutional perspective and is without parallel in the democratic world
The Israel Democracy Institute (IDI) submitted an opinion to Deputy Attorney General Raz Nizri, asserting that setting sweeping restrictions on Israeli citizens’ ability to return to the country from overseas is extremely problematic from a constitutional perspective and is without parallel in the democratic world. The opinion also stated that restrictions on entry by citizens and permanent residents at this time could infringe on the right to vote in the upcoming elections as Israelis must be present in the country in order to cast their ballot.
The authors of the opinion, Prof. Yuval Shany, Prof. Mordechai Kremnitzer, Dr. Amir Fuchs, Dr. Guy Lurie, and Nadiv Mordechai, call on the Government to end without delay the ban on citizens’ entry, or at the very least to decide that the current severe restrictions on their return to Israel will not be extended beyond their current expiration date.
An international comparison conducted by IDI found that other democracies combatting the COVID-19 crisis have not imposed a blanket prohibition on their citizen’s entry and that the Israeli ban is highly exceptional. For example, other countries that have imposed restrictions on foreigners entering their territory such as Australia, the United States, Great Britain, France, Canada, Russia, Sweden, and New Zealand are allowing their own citizens to enter the country, even in these perilous times, although some of them do impose limits on the ability to leave the country (which raise another set of constitutional problems).
The opinion begins by noting that “in view of every person’s constitutional right to leave Israel and every citizen’s right to re-enter the country, a general prohibition on entry and exit is not in the spirit of the provisions of the Basic Law: Human Dignity and Liberty. There is a concern that the erosion of the rights affected is not proportionate, but rather extreme, even in view of the current health challenge.”
The authors add, “This mechanism has been implemented following the State’s inability to effectively enforce a quarantine on those returning to Israel. This failure has led to the adoption of an approach that provides greater harm to the rights of citizens than quarantine and has left many Israelis as exiles abroad during a global health crisis.”
The authors concluded by writing that “the extreme changes in policy—from one of a fully open airport, to a complete closure without warning, catching unawares citizens who traveled abroad lawfully, with the full expectation that they would be able to return, and without giving them a chance to prepare accordingly—creates intolerable human situations. The State must find an answer that is epidemiologically sound and constitutionally proportionate and must permit citizens to return home without delay.”
An International Comparison
|Israel||All entry and exit banned, including by citizens, except for travelers whose entry has been approved by an 'Exceptions Committee.'|
|Australia||No exit without a special waiver; no entry, except by Australian citizens, residents, close relatives, and travelers who spent the last 14 days in New Zealand.|
|Canada||No entry, except by citizens and residents of Canada, and others who fall into some exception category and meet other conditions. The government recommends that people not leave the country.|
|France||With the exception of certain countries, no entry except by French citizens and those on a list of permitted exceptions.|
|Germany||No entry by travelers from certain countries, unless they have a vital need, with the exception of European Union citizens or holders of long-term visas. Germany is implementing the EU plan that distinguishes between entry from the rest of the EU and entry from other countries.|
|Great Britain||No exit, except where there are legal grounds for permitting it; no entry by travelers who were in any of a list of countries during the past 10 days, except for British subjects, Irish citizens, and residents of Britain.|
|New Zealand||The government recommends that people not leave the country, but allows them to do so; no entry, except by citizens and residents (subject to a negative coronavirus test) and exceptional cases.|
|Russia||No entry, except by Russian citizens and permanent residents and by citizens of several other countries.|
|Sweden||No entry, except by Swedish citizens, unless travelers can show a negative coronavirus test (EU citizens) or a negative test and valid reason for an exception.|
|United States||No entry by travelers from certain counties (such as Austria, Belgium, Brazil, China, and Great Britain), except for citizens, permanent residents, and their families, as well as by holders of specific categories of visas—subject to a negative coronavirus test.|