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

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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." 2
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." 3
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Israel , Guy Shani, The Constitutional Rights of Foreigners in Israel

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