Israel , Guy Shani, The Constitutional Rights of Foreigners in Israel

Co.Co.A.
Comparing Constitutional Adjudication
A Summer School on Comparative Interpretation of European Constitutional
Jurisprudence
3rd Edition - 2008
The constitutional rights of foreigners
Israel
The Constitutional Rights of Foreigners in Israel
Prepared by: Guy Shani
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The Constitutional Rights of Foreigners in Israel
Guy Shani
1. General
The Supreme Court of Israel has always considered the protection of human
rights to be one of its main functions. Until 1992, the Supreme Court's protection of
human rights evolved as part of Israeli common law. Utilizing its central role in the
interpretation of laws and its power of judicial review of administrative acts, the
Supreme Court developed an important foundation for protecting human rights such as
freedom of speech, equality and the right to assemble 1 . Since 1992, the constitutional
protection of human rights in Israel has been strengthened by the application of two
Basic Laws – Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of
Occupation. Although these Basic Laws do not expressly authorize judicial
constitutional review, a panel of nine Israeli Supreme Court judges held that the Court is
authorized to invalidate legislation if it infringes on basic constitutional rights 2 .
The language of Basic Law: Human Dignity and Liberty refers generally to
human beings—and not only to citizens. For example, Article 2 provides that "There
shall be no violation of the life, body or dignity of any person as such" 3 . Article 3 states
that "There shall be no violation of the property of a person." Article 4 provides that
"All persons are entitled to protection of their life, body and dignity." The remaining
Articles similarly refer to people rather than to citizens 4 . The only exception is Article
1 See, e.g., HCJ 73/53 "Kol Ha-am" Co. Ltd. v. Minister of the Interior [1953] IsrSC 7(2) 871; HCJ
153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221.
2 See CA 6821/93 Bank Hamizrahi Ltd. v. Migdal [1995] IsrSC 49(2) 221.
3 Emphases here, and in the next quotations, are added.
4 Article 5: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest,
extradition or otherwise."
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6(b), according to which "Every Israeli national has the right of entry into Israel from
abroad." In Basic Law: Freedom of Occupation, Article 3 states that: "Every Israeli
national or resident has the right to engage in any occupation, profession or trade."
The wording of the Basic Laws therefore implies that constitutional protection is
not restricted to citizens or residents. Nevertheless, questions still arise as to the
application of the constitutional protection with regard to non-citizens and as to the
balance between the protected rights, both amongst themselves and with countervailing
interests. In this paper I would like to introduce the Israeli Supreme Court's view on two
issues relating to the constitutional rights of foreigners. The first issue concerns the
constitutional rights of foreign workers in Israel. The second issue deals with the
protection of human rights of Palestinians.
2. The constitutional rights of foreign workers in Israel
I begin with the question of the constitutional rights of foreign workers in Israel.
Over the last two decades, the State of Israel has become a desirable destination for
foreign workers. These men and women come to Israel from different countries seeking
employment in various sectors of the economy, particularly agriculture, construction,
nursing, and manufacturing. This migration of workers—many of whom come to Israel
illegally—raise many problems because of their influence on the employment structure,
the level of wages, and internal unemployment. On the other hand, it is apparent that
these foreign workers, as human beings, are entitled to be treated with respect, and that
their human dignity should not be overlooked.
Article 6 (a): "All persons are free to leave Israel."
Article 7: "(a) All persons have the right to privacy and to intimacy; (b) There shall be no entry into the
private premises of a person who has not consented thereto; (c) No search shall be conducted on the
private premises of a person, nor in the body or personal effects; (d) There shall be no violation of the
confidentiality of conversation, or of the writings or records of a person."
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Foreign workers are amongst the weakest groups in society. Often, they are
almost invisible. As the Supreme Court noted in Kav LaOved Worker's Hotline v.
Government of Israel 5 : "A large number of the migrants suffer from low living and
work conditions . . . and sometimes also from negative labeling and social hostility."
Moreover, in many cases, foreign workers are either unaware of their constitutional
rights or unable to bring their case before the Supreme Court acting as the High Court
of Justice. This is only somewhat mitigated by the aid of non-profit organizations.
In Kav LaOved Worker's Hotline, a petition was brought to the Israeli Supreme
Court questioning the government's policy of granting work permits that are tied to a
specific employer. The policy is known as the “restrictive employment arrangement” or
“the chaining arrangement,” because termination of a migrant worker's employment
converts him to an illegal alien, which in turn puts him at risk of arrest and deportation.
The petitioners challenged the policy, arguing that it violates the foreign workers'
dignity and liberty, undermines their bargaining power in the employment market, and
grants substantial leverage to abusive employers who violate labour laws. The
respondents replied, inter alia, that the restrictive employment arrangement is essential
to ensuring the supervision of foreign workers in Israel.
The Supreme Court struck down the government's policy on the ground that it
violated the rights of foreign workers. The Court did not overlook the need to maintain
supervision of foreign workers in Israel. But it was decided that the infringement of the
rights of the foreign workers was disproportionate with respect to this objective. In the
words of Justice Levi:
5 HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006], for English translation see
http://elyon1.court.gov.il/files_eng/02/420/045/o28/02045420.o28.htm.
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The restrictive employment arrangement violates the basic rights of the
foreign workers. It violates the inherent right to liberty. It violates human
freedom of action. It denies the autonomy of the free will. It tramples the
basic right to be released from a work contract. It takes away a basic
economic bargaining power from a party to employment relations who is
already weak. By doing all this, the restrictive employment arrangement
violates his human dignity and liberty in the most basic sense.
Human dignity is the cornerstone of all human rights in Israel. Human dignity
was broadly construed by the Israeli Supreme Court, which held that every human being
is autonomous and free, may develop mentally and physically as she pleases, and write
the story of her life as she chooses. Two assertions regarding human dignity lay at the
heart of the Court's decision In Kav LaOved Worker's Hotline: first, the Court held that
the restrictive employment arrangement compels foreign workers to choose between
two evils: continue working for an employer against their will or lose their permit to
reside in Israel. By doing so, the arrangement stands in stark contrast to the value of
human dignity. Second, the Court held that foreign workers, just as citizens, are entitled
to human dignity. The combination of these factors led the Court to strike down the
governmental policy.
In support of this decision, the Court drew upon various legal sources, such as
international law, as well as non-legal sources, such as Jewish heritage and Jewish
history. For example, the Court stressed that the right to work free of coercion is
enshrined in international conventions. In regards to universal values, Justice Cheshin
went as far as to quote the Bible: “And you shall not oppress a stranger, nor shall you
pressurize him, for you were strangers in the land of Egypt (Exodus 22, 20).” Justice
Cheshin concluded:
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A study of the restrictive arrangement that the state created and applied
to foreign workers—unfortunate persons who are separated from their
families for months, and even years—gives rise to astonishment mingled
with anger: how can persons in authority in our country think that they
can treat in this way women and men who only want to provide for their
families . . . Every human being—even if he is a foreigner—is entitled
to his dignity as a human being.
I believe that this is a remarkable decision. It is courageous in its protection of a
disempowered group, sensitive in its humanity, and profoundly written. Moreover, the
Supreme Court acknowledged, without hesitation, that basic constitutional rights apply
to foreign workers.
3. The protection of human rights in times of conflict
The question of protecting human rights of foreigners becomes all the more
difficult when it comes to the Israeli-Palestinian conflict. Of course, this issue raises
many questions that cannot be examined comprehensively in this short paper, but I will
try to demonstrate some of the dilemmas. One complexity stems from the fact that the
territories of Judea and Samaria ("the West Bank") fall under multiple jurisdictions.
Israeli law and administration are explicitly applied to East Jerusalem, but not to the
territories, which are subject to belligerent occupation and are not considered part of
Israel. The legislation in these territories is comprised of two main layers: Jordanian law
and ordinances issued by the Israeli military command. This jurisdictional arrangement
is prescribed by international law, but the plot thickens: Israeli citizens residing in the
occupied territories are subject to many Israeli provisions that apply to them in
personam. The Supreme Court still has not decided whether the Basic Laws protecting
human rights generally apply to the territories located beyond Israeli borders. In one
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case, the Court held that they apply to Israeli settlers in personam, 6 but the question of
whether basic constitutional rights apply to non-Israeli citizens remained unanswered.
This maze of jurisdictions sometimes creates constitutional questions. For
example, in a recent petition filed to the Supreme Court, Palestinian employees of
Israeli employers in the occupied territories claimed that the labor law governing their
labor relations is the Israeli labor law, not the local Jordanian law which is less
beneficial to workers. 7 Examining the unique jurisdictional situation in these territories,
the Supreme Court found in favor of the Palestinian petitioners. Several reasons led the
Court to this outcome; the most relevant one pertains to the equality consideration.
The Court emphasized that the solution to the conflict of laws must conform
with the constitutional right to equality. Subjecting Palestinian employees of Israeli
employers in the settlements to Jordanian labor law while applying the more liberal
Israeli labor law to their Israeli co-workers, was deemed unlawful discrimination.
Stating that “Such a differentiation, based on citizenship or nationality, is wrong,” the
Court concluded that Israeli law governs the labor contracts of Palestinian employees in
the territories, just as it governs the labor contracts of their Israeli co-workers.
Maybe the most difficult question is the protection of human rights of a different
category of Palestinian foreigners—those belonging to a group that is engaged in
terrorist activity. For many years, Israel has been battling terrorism. This inevitably
presents one of the most difficult challenges a democratic state and its judicial system
can face: balancing the need to safeguard national security with the desire to safeguard
6 See HCJ 1661/05 Regional Council Hof Aza v. Israeli Knesset [2005] IsrSC 59(2) 481.
7
See HCJ 5666/03 Kav LaOved Worker's Hotline v. National Labor Court [2007],
http://elyon1.court.gov.il/files/03/660/056/P17/03056660.p17.htm.
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human rights. The fact that Israel is experiencing an almost permanent state of
emergency complicates this delicate balancing act even further.
From the outset, it was clear to the Court that, in spite of the security difficulties
facing Israel, it had to ensure that the State acts within the rule of law. On the domestic
plane, this meant upholding administrative and constitutional law; on the international
plane, this meant adhering to international law and principles. While the Israeli Supreme
Court recognized that human rights cannot serve as a tool for national destruction, it
also stressed that national necessity cannot justify widespread infringement of human
rights.
Critics of the Court argue that security considerations must prevail when they
conflict with human rights. The Court's jurisprudence on this point is clear. A state of
emergency does not justify the neglect of legal norms and constitutional values.
Although the Court acknowledged that it lacked military expertise and refrained from
interfering with military considerations per se, it did not hesitate to intervene in what it
considered to be its area of expertise and responsibility: the considerations of equality,
human dignity, and freedom. Thus, the Supreme Court was faced with the daunting
challenge of striking a balance—which may vary from case to case—between these two
eminent and clashing considerations.
To illustrate this point, I will describe an Israeli Supreme Court case that
concerned the issue of interrogation methods, requiring the Court to balance the
interests of national security with the human rights of Palestinian suspected of being
involved in terrorist activity. 8 The case dealt with the General Security Services, the
8 HCJ 5100/94 Public Committee Against Torture in Israel v. Israeli Government [1999] IsrSC 53(4) 817.
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agency charged with ensuring Israel's internal security. As part of its task of gathering
information in order to prevent security breaches, the Service interrogates suspected
terrorists. The Supreme Court was petitioned regarding the Service's use of
extraordinary interrogation techniques.
In a landmark decision, the Court held that the General Security Service is not
authorized to use physical means during the interrogation of Palestinian terror suspects.
The Court was of the opinion that interrogation methods must not infringe on the
dignity and individual privacy of detainees, thus recognizing their basic constitutional
rights. The Court candidly admitted that the decision in this case was difficult—not so
much because of the legal questions, but rather because—and I quote:
We [the Judges] are part of the Israeli society. We are familiar with the
harsh reality of terror Israel is facing. We fear that our verdict will
prevent appropriate fight against terror. But we are judges. We have to
comply with the law just as we demand others to do. We have to follow
our conscience and our recognition of the law.
That being said, the Court ended its verdict with these words:
Sometimes democracy fights with one of its hands tied behind her back.
Nevertheless, democracy has the upper hand because protecting the rule
of law and recognizing human rights is an essential aspect of its security.
Following the decision, the General Security Services revised their interrogation
methods to comply with the Court's decision.
In conclusion, the cases I presented demonstrate the Supreme Court's willingness
to uphold and protect the constitutional rights of foreigners, despite substantial opposing
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considerations and, even more importantly, to do so in the face of opposing public
opinion. The execution and ultimate acceptance of the Court's verdicts are a testament
to both the respect it commands and to the soundness of its judgment.
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