Another Victim of the Pandemic: Our Fundamental Rights

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There is no doubt that the Government has an obligation to employ meaningful measures against the pandemic, but the ease with which it was willing to infringe basic rights—is most disturbing

Flash 90

The combination of new COVID variants, the fierce criticism of the Government’s inept policy for dealing with Ben-Gurion Airport, and the panic that seized the decision-makers at the thought of a new rise in infections in advance of the elections has prodded Israel to adopt something that no democratic country has ever done: a total ban on its own citizens ability to return from abroad without introducing, as some countries have, a process for ensuring their gradual return. The Government went even further and barred Israeli citizens from leaving the country—it too an exceptional step that very few democracies have taken. 

There is no doubt that the Government has an obligation to employ meaningful measures against the new viral mutations, but the ease with which it was willing to infringe basic rights—in this case, Section 6 of the Basic Law: Human Dignity and Liberty, which states that “All persons are free to leave Israel” and “Every Israel national has the right of entry into Israel from abroad”—is most disturbing. Certainly, it is clear that there are alternative and less severe methods to counter the risk effectively. For example, individuals should be required to undergo a virus test before and after the flight; the requirement to isolate in a quarantine hostel or at home could be enforced more strictly; a distinction could be drawn between those who have already been vaccinated or have recovered from COVID-19 and those who have not; or between those who are leaving the country for a brief period and those going abroad for an extended stay; etc. But the Government chose to skip all these proportionate solutions and went straight for the most draconian and indiscriminate method – “closing the skies”.

As on other fronts of the battle against the virus, here too, the Government’s disdain for the very idea of fundamental rights as placing limits on its power and as an expression of basic democratic concepts stands out. Instead of dealing with those who violate quarantine and enforcing the law to the letter, the Government has opted for an unwarranted infringement of every Israeli’s basic right to leave and enter the country. Instead of a focused attempt to counter the spread of the variants in Israel, which would require a long-term administrative effort, it decided to swing for the fences. The arbitrary closure of the borders created a long series of absurd situations that have absolutely nothing to do with an epidemiological risk. Even applications by terminal patients who asked to leave the country to end their lives abroad with dignity were denied. (The ‘exceptions committee’ in the Transport Ministry did relent finally, but only after affected families mounted a public campaign to be allowed to leave the country.)

It is no accident that not a single other democracy has taken such a drastic step. Democracies rest on a social compact whose core is the idea that the country belongs to its citizens, the government derives it power from the consent of the governed, and its job is to serve them. A country that locks out its own citizens, without taking even gradual steps to allow them back in, is violating a basic element of the social compact on which it is based. It is preventing the owners from entering their house. What is more, doing so often leaves citizens in an impossible situation—exiles abroad, at times with expired visas, unable to support themselves and continue with their lives: and all of this in the midst of a severe global health crisis. The state’s wanton treatment of its citizens is even more astonishing in the case of a country that was established to provide a home for Jewish refugees and that generally spares no effort to help Israeli citizens in trouble in remote corners of the word.

The Government’s abandonment of its basic obligation to accept responsibility for the life and health of citizens abroad, as well as the other severe measures that Israel has taken, such as the tracking by the General Security Service—again, the only democracy where this has been introduced—points to the fragile condition of the fundamental rights and fundamental concepts that compose the Israeli social compact. It also testifies to the current profound weakening of the “gatekeepers”, those within and outside the Government who are supposed to prevent the authorities from trampling on individual rights but whose status has been severely eroded over the past year as result of the pandemic and the political crisis related to the Prime Minister’s trial.

In this regard too, just as on the medical, economic, and political planes, when the pandemic is past Israel will need to embark on a project of rehabilitation—repairing the social compact, repairing constitutional protections of rights, and repairing the status of the guardians of democracy.

The article was published in the Times of Israel.