High Court of Justice Denies Petition to Allow Visits to Cemeteries on Memorial Day

Netael Bandel
Netael Bandel
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The Mt. Herzl national cemetery
The Mt. Herzl national cemetery, April 26. 2020.Credit: Emil Salman
Netael Bandel
Netael Bandel

The High Court of Justice on Monday denied a petition that challenged the prohibition on visits to cemeteries and memorial sites on Memorial Day.

The prohibition came into effect on Monday at 4 P.M. and will expire on Tuesday at the end of Memorial Day. The cabinet decided to prohibit visits to the cemeteries over concern that crowds gathering there would propagate the spread of the coronavirus. The cabinet approved the measure through emergency regulations.

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Justices Yitzhak Amit, Yael Willner and Ofer Grosskopf ruled that the arrangement approved in the regulations “is not illegal,” and concluded its court decision with the following: “Therefore, and despite the sorrow and pain aroused in all our hearts by this petition, we see no choice but to reject it.”

The petition was submitted to the High Court on Sunday by lawyer and right-wing Kahanist activist Itamar Ben Gvir on behalf of Nati Smadar, whose father, Haim, was murdered in 2002 in a terrorist attack in Jerusalem. The petition claimed that the government is not authorized to approve emergency regulations on the subject while there is a Knesset in office. It also claimed that the government decision is disproportionately harmful to bereaved families, and that it "irrationally links the interest of preserving the nation’s health and the obligation to enable bereaved families to honor the memory of their loved ones.”

The petitioner said that the government could have avoided a sweeping prohibition against the visits and made do with demanding that visitors wear a mask and maintain social distancing. He said that the emergency measure discriminates against those who want to visit military cemeteries and undermines the principle of equality in light of the permission in health regulations to participate in demonstrations and to shop. The petition asserts that the right to visit the graves of loved ones is no less important than the right to demonstrate or buy furniture.

Smadar proposed that only the nuclear family be allowed to visit their loved one's grave, but the cabinet and the justices were opposed for several reasons: First, as Amit wrote, “It’s hard to see how the prohibition can be enforced while preserving the dignity of the site and the feelings of the family members. What hardhearted policeman or soldier could stand at the entrance to the cemetery and screen those entering by asking: “Who are you and what is your relationship to the fallen soldier buried in this cemetery?”

The justices added that the proposal does not meet the directives of the Health Ministry regarding distancing between people, and raises logistical and enforcement problems. But it also raises a human and emotional problem, and is likely to create painful disputes – the mother or the widow? The mother or the father? The orphan or the brother? They also said the proposal involved a risk of mass contagion.

Finally it was ruled that since the government consulted with organizations for bereaved families prior to the decision, this consultation is important and supports the conclusion that the arrangement is proportionate and balances reasonably between the painful blow to the rights and feelings of the bereaved families, and the need to protect their health and that of the public.

Ben Gvir said: “I pray we won’t see bereaved families kept from visiting the grave of their loved one. Health aspects are important, but I believe the government could have allowed a nuclear family to visit the grave, and I’m sorry the justices did not want to intervene. What’s permitted for demonstrators should be permitted for bereaved parents.”

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