High Court rules skies to open for returning Israelis

The High Court of Justice declared as unconstitutional on Wednesday the government’s limit of 3,000 people per day to enter Ben-Gurion Airport, which was imposed to minimize coronavirus transmission.

The High Court ruled that the restriction must end on Saturday, three days before the elections on Tuesday.

Thousands of Israelis have been unable to return to the country since the restrictions were imposed in late January. The restrictions also impacted Israelis wanting to return home to vote.

Israel’s coronavirus commissioner Prof. Nachman Ash criticized the High Court’s ruling lifting the restrictions to allow Israelis to return to vote, saying it will increase COVID-19 morbidity rates and heighten the risk from dangerous variants of the virus.

“We have taken many steps to prevent this, and it is a pity that we are now putting people at risk,” Ash said in a statement. “The High Court’s decision may bring the State of Israel closer to a wave of high morbidity right now.”

Deputy Health Minister Yoav Kisch slammed the ruling, writing on Twitter: “The High Court is taking responsibility for the risk of mutations entering Israel. Good luck to us.”

Though technically the ruling is a win for the Movement for Quality Government in Israel, which filed a petition to open the skies, the fact that the justices dragged their feet on the issue for weeks – and are allowing the government policy to continue through this Saturday – significantly limits the practical extent to which overseas Israeli  citizens will be able to take advantage of returning to vote.

High Court President Esther Hayut, Justice Neal Hendel and Justice Yitzhak Amit said in their ruling that the restrictions “violate the basic constitutional right to enter and exit Israel, and other rights at the core of the democratic fabric of life.”

The justices also at least temporarily removed restrictions on Israelis wanting to fly out of the country even if they have not yet been vaccinated or recovered from corona.

It was unclear, however, whether those restrictions on flying out of the country might return if infection rates spike again, since the justices left the government an opening to reimpose certain restrictions that had clearer benchmarks and expiration dates.

A legal brief by the state to the High Court on Monday revealed that 1,879 overseas Israelis are stranded and waiting to find out if they will get into the country in time to vote in Tuesday’s election.

The brief was filed as part of an ongoing legal fight over whether the government can maintain limits on how many overseas Israelis can come into the country in anticipation of Election Day.

Despite already issuing two interim orders to pressure the government over the issue, which has been before the court since early last week, the justices did not issue a final order until Wednesday.

The Movement for Quality Government in Israel said earlier this week that with the state finally showing more flexibility about which overseas locations can send flights to Israel, as well as the limited number of 1,879 Israelis who want to come to vote, it saw no reason why the state is continuing to maintaining a 3,000-people-per-day limit.

In other words, the movement said that this limit seems unnecessary given that the number of overseas Israelis who want to come to vote is significantly lower than that.

At the same time, the NGO rejected the limit on principle, continuing to note that no other country is putting such limits on its citizens returning home, let alone for the purpose of exercising their fundamental right to vote.

It was unclear if the High Court decided to drag out its decision to open Ben-Gurion to overseas Israelis until it was so close to Election Day so that its order would be too late and have little impact, or if the justices thought the state had already shown enough new flexibility, or if they were worried about later being blamed for a fourth coronavirus wave.

Last week, the court seemed to signal that it would rule against the government and order Ben-Gurion Airport to be fully opened to overseas Israeli citizens who wish to vote in the Tuesday election.

The justices last week issued a conditional interim order demanding that the government explain by this past Sunday why it was legal for it to limit the number and schedule of Israeli voters to come into the country to vote.

The aggressive schedule set by the court – which stated that the government had to respond by 11:30 a.m. last Sunday and the petitioners had to counter no later than 2:30 p.m. – suggested that the justices might rule by Sunday afternoon or evening. But on Sunday evening, the justices ordered the state to provide a Monday update regarding the number of stranded Israelis.

However, they held off on ruling until Wednesday and delayed their order from going into effect until Saturday, showing hesitation about how much their order might impact the coronavirus trends nationwide and appearing concerned about later being blamed for causing a fourth wave and fourth lockdown.

Early last week, multiple parties filed a petition with the High Court demanding that it order the government to allow back into the country all Israelis overseas who want to return to vote in the upcoming election.

The petition said that the recent government expansion of how many Israelis can return was inadequate, as it is limited to 1,000 per day at certain points with a maximum on some days of 3,000.

This is not the only petition the movement has filed regarding entry controversies at Ben-Gurion Airport.

Two weeks ago, it filed a petition to compel the government to publicize its decision-making process for granting special permits to enter the country through Ben-Gurion during the recent lockdown.

The movement warned that “there is a suspicion that the decisions were made with preference to people who have special connections in the corridors of power.”

According to the NGO, the special committee for granting exemptions must publicize in detail the justifications for its various decisions, in order to confront allegations of “systematic discrimination” and “giving preference to certain sectors.”