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

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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. 4
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: 5
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Israel , Guy Shani, The Constitutional Rights of Foreigners in Israel

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