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Israel: Temporary Restriction on the Right to Protest during Coronavirus Lockdown Adopted

(Oct. 9, 2020) On September 30, 2020, the Knesset (Israel’s parliament) plenum, by a vote of 46-38, passed legislation authorizing the government to declare, during a national lockdown, a “special state of emergency due to the coronavirus” and impose travel restrictions and other restrictions on the movement of persons as well as on public gatherings. The declaration may be in force for a period of up to 45 days, which may be extended periodically for up to 60 days, subject to the approval of the Knesset Constitution, Law and Justice Committee or the Knesset plenum, as appropriate.

The Special Powers for Dealing with the Novel Coronavirus (Temporary Order) (Amendment No. 2) Law, 5781-2020 (Amendment Law), amended the Special Authorities to Combat the Novel Coronavirus (Temporary Provision) Law, 5780-2020 (Special Authorities Law). The Special Authorities Law authorizes the government to declare a state of emergency when it is “convinced that [there exists] a real risk that the coronavirus will spread widely and pose significant harm to public health.”

A declaration of a special state of emergency under the amended Special Authorities Law enables the government, during a state of emergency period declared under the Special Authorities Law, “upon realizing that there is widespread transmission of the coronavirus that causes serious harm to public health,” to issue additional restrictions to reduce such harm. Such restrictions may include limitations on the movement of persons outside of their place of residence for the purpose of engaging in a list of activities, including “participation in a demonstration.” (Special Authorities Law, as amended, §§ 3A & 7(a)(1)(j).)

On October 1, 2020, under the Amendment Law, the Israeli government approved a regulation that prohibits persons from attending demonstrations more than 1,000 meters (about 0.62 miles) from their residence, for a period of seven days, which was extended on October 7, 2020 for an additional period ending on October 13, 2020. During that period, protestors who live in a particular area are only allowed to congregate in that area under the general social distancing requirements of keeping two meters (about 6.56 feet) between persons, with a maximum of 20 people in an open public space or 10 people in buildings. (Special Powers for Dealing with the Novel Coronavirus (Limit on Stay and Activity in Public Space) (Amendment No. 3), 5781-2020, section 6 adding reg. 24; with period extension provided under Amendment No. 4.)

The restriction on the right to protest was made amid mass protests taking place throughout Israel against the prime minister, who has been indicted on integrity offenses, and against the way the government has handled the COVID-19 pandemic. The adoption of the restriction has been met with public protests.

On August 19, 2020, the Supreme Court rejected petitions to relocate or place limitations on protests near the official residence of Prime Minister Benjamin Netanyahu in Jerusalem. (HC 5078/20 Fadida v. Israel Police.) According to the Court, any limitation on the number of protesters would constitute a severe restriction on a person’s right to demonstrate and should be narrowly constructed and proportionately tailored.