Purposive Interpretation: AAA 1966/09 'Attoun v. Minister of Interior (Judgment of November 22, 2011)

There is great rule in interpretation that a single term that appears in different statutes may have a different meanings in different statutes, according to the context and purpose of the law. This rule is connected to the principle of interpretation which governs Israeli jurisprudence – the purposive interpretation. The court is bound by the language of the law, but it does not read the text mechanically. Rather, of the interpretations that can be anchored in the text, it selects the one that fulfils the general purposes of the legal system and the specific purposes of the statute. The 'Attoun judgment teaches us that it is possible to adopt a literal, technical reading of a statute and at the same time arrive at a situation in which the same term has different meanings. Not only that, it has different meanings within a single statute!

The circumstances of the 'Attoun judgment are unique, but they are entirely anchored in the ordinary reality of the occupation. In 1967, Israel seized the village of Sur Bahir. Shortly after the occupation began, Israel applied its laws to parts of the occupied territory, in Jerusalem and its vicinity. As far as Israel was concerned, these areas became an inseparable part of the sovereign State of Israel. A line drawn on a map delineated which areas came Israeli law, including Sur Bahir. The line had no physical presence on the ground. The hills and valleys continued to roll to the south-east, toward the Judea desert, without any fence or border post marking the line on the map. With time, it turned out that the virtual line drawn in 1967, left some of the village's land outside the area to which Israeli law had been applied. In the meantime, houses had been built on this land. This houses are part of one of the village neighborhoods – Wadi Hummus.

When Israel began building the separation wall, it was planned such that it would traverse the village, along the same line that separates the part of the Occupied Palestinian Territories (OPT) that were annexed to Israel and the parts that were not. Village residents petitioned the High Court of Justice (HCJ) and the route of the wall was moved such that all of the houses in the village would remain on the Israeli side of the fence.[1] This decision evinces recognition of the unique reality of life experienced by Wadi Hummus residents living in that area. Though they formally live in the area of the military government, they have no ties to this area. They live on the outskirts of a village which is mostly inside the territory that was annexed to Israel. Wadi Hummus residents (for the most part) have Israeli ID cards. They work, study, shop and conduct all of their social and financial affairs inside the area annexed to Israel. Once the decision was made, and the wall erected, these residents' connection to Israel took on a dramatic physical dimension. The wall physically separated them from the areas that had not been annexed to Israel and blocked direct access from Wadi Hummus to these areas. The wall thrust the residents of Wadi Hummus into Israel's bosom, throwing arms of barbed wire around both.

The fact that the residents of this part of Wadi Hummus conduct every aspect of their lives in the areas that were annexed to Israel led the government to take another step in their matter. Following a claim filed in the Labor Court, the government agreed to grant all social benefits given under Israel law to those residents of the enclave who have permanent residency status in Israel.

The 'Attoun family is one of the families living in the Wadi Hummus enclave located on land that was not annexed to Israel. Two of the family's children are not registered in the Israel population registry. Their father has an Israeli ID card, but their mother has an OPT ID card. Two other children received Israeli IDs (at a time when the Ministry of Interior registered children according to their father's status), but these two were denied permanent residency status in Israel, status that enables them to be entered into the population registry and obtain an ID card. The reason for the refusal: they do not live in Israel. The family, with the assistance of HaMoked, petitioned the court against this decision. Their main argument was that according to Ministry of Interior policy, which is anchored in case law, when a child is born in Israel to parents only one of whom has status in Israel, the child would be registered in Israel if the parent who has status in the country has a center of life therein, meaning that he conducts all of his daily affairs within the country. Whether or not a person has a center of life in Israel is determined by facts, through an examination of the ties a person has to the country in all aspects of life. Living inside Israel is one of the factors that is taken into account when center-of-life is examined, but this is not a conditio sine qua non. In the special circumstances of the 'Attoun family's life, center-of-life in Israel does exist, even though the family formally lives beyond the annexation line. The decisions to shift the route of the fence and acknowledge social benefit entitlements reflect the recognition that these are people whose center-of-life is in Israel.[2]

The District Court dismissed the 'Attoun petition.[3] The family appealed to the Supreme Court,[4] but the appeal too was dismissed by the majority opinions of Justices Levy and Grunis, with a dissenting opinion by Justice Beinisch.

Justice Levy uses a narrow, literal interpretation of the law as grounds for rejecting the appeal. He believes the Entry into Israel Law can come into action only with respect to individuals seeking to enter Israel, and permanent residency in Israel can only be granted to those wishing to permanently reside in Israel. In his words:

The Entry into Israel Law 5712-1952 is, as its name indicates, a law regarding entry into Israel and the regulation of the status of those persons who are present in but are not citizens of the country. The law begins with entry into Israel which is regulated under Section 1(a): “The entry into Israel of a person who is not a citizen of Israel shall be by virtue of an oleh certificate [reserved for Jewish immigrants to Israel, translator’s note] or a visa issued pursuant to this law.” The Law continues with presence within the country in Section 1(b): “A person who is not an Israeli citizen, or does not possess an oleh certificate, shall reside in Israel by virtue of a visa issued pursuant to this law.” I believe that these provisions contain a clear presumption that the law applies to people who are present inside the country rather than outside it.[5]

According to Levy, the Entry into Israel Law concerns the country's borders. A border is a border. The areas under the military's government control are outside the country's borders and when it comes to borders, there are no grey areas:

Clearly, the State of Israel, as any sovereign state, has borders and only people who traverse them cross its gates and enter its territory. The Appellants’ family established its place of residence a few hundred meters outside the municipal borders of the city of Jerusalem. Indeed, in these circumstances, one standing at the threshold of the country might feel that he is inside it, but it is not so, as the border, even if it appears to some as arbitrary and inflexible, is the only marker of where a person resides. In other words, this is the nature of a border that “we are always on one side of it… or on the other”…[6]

If the Entry into Israel Law allows granting status only to individuals who intend to live inside its sovereign territory, then the same applies to granting status in Israel under Regulation 12 of the Entry into Israel Regulations 5734-1974.[7] This is the regulation that empowers the Minister of Interior to grant status in Israel to a child one of whose parents is a permanent resident of the country:

[Beinisch's] attempt to find a solution for the concrete problem in which the Appellants find themselves practically leads to our instructing that the Respondent grant a “visa for residency in Israel”, as stated in the Law, to a person who wishes to continue to live outside its borders. In my humble opinion, this result fails to achieve the purpose of the Regulation and it is inconsistent with the Law from which the Regulation draws its validity.[8]

And Justice Grunis follows suit:

[T]he relevant law, the Entry into Israel Law, 5712-1952 (hereinafter: the Law) and the regulations enacted pursuant thereto, seek to regulate a person’s status in Israel, not outside it. As known, Appellants 2 and 3 live with their family outside the country.[9]

But is it really so? Is it true that the language of the Entry into Israel Law cannot tolerate granting permanent status in Israel to a person living outside it, so that he may be able to continue maintain his center of life in the country, which involves entering it every day and spending most of his time within its territory? Is there an internal contradiction in granting the right to permanently reside in Israel to a person whose bedroom is outside it but whose center-of-life is inside it. The judgment is bereft of a reasoned explanation as to why this is impossible other than repeatedly recalling the narrowest sense of the word "in" in the phrase "permanent residency in Israel". When Justice Levy faces the question head-on, his off-hand answer is that it is "inconceivable".

I am not arguing that a person’s center-of-life is measured solely by his place of residence. As stated above, the reality in which residents of Wadi Hummus live has created a situation whereby many of them conduct their lives in the territory of Jerusalem. However, I believe that granting residency status under Regulation 12 to persons who reside with their parents outside the territory of the country, for reasons of preserving the integrity of the family unit, is inconceivable.[10]

What seems to Justice Levy unreasonable and to Justice Grunis inconsonant with the language of the law, is entirely conceivable in the eyes of the legislature itself and in the daily policy of the Interior Ministry. In Israeli legislation and in the routine policy of the Interior Ministry, that border we are always on one side or the other of, is surprisingly flexible.

So for example, Section 7 of the Entry into Israel Law stipulates that entry into Israel shall be made only at a border crossing point. The Entry into Israel (Border Crossings) Order, 5747-1987,[11] stipulates the list of Israel's border crossings. Three of these points are not located on Israel's sovereign borders (Allenby Bridge, Adam Bridge and Rafah). According to the Oslo Accords, Israeli visas given under the Entry into Israel Law are valid for the OPT as well. In practice, foreign nationals living in the OPT (such as staff members of the various international organizations) reside there pursuant to such visas. The visas are given to them so that they may reside in the OPT, and since they often enter the OPT via Allenby Bridge, they may never set foot on Israeli soil.

And what about the settlements? The law extending the Emergency Regulations (Judea and Samaria – Adjudication of Offenses and Legal Aid) 5727-1967, addresses this issue. According to Section 6(b) of the schedule to the law –

For purposes of the statutory provisions enumerated in the schedule [including the Entry into Israel Law, Y.W.], the term "a resident of Israel", or any other term regarding residency or presence in Israel included therein shall be regarded as including a person who resides in the Area and who is an Israeli citizen, or entitled to emigrate to Israel under the Law of Return 5710-1950, and who, had he lived inside Israel, would have come under the terms of such a phrase.[12]

Meaning, it is enough to be Jewish (or a relative of a Jewish person according to the definitions included in the Law of Return) and to live in a settlement (the term Area in this law does not apply to areas under the territorial responsibility of the Palestinian Authority) to be considered a "resident of Israel", even if there is no center-of-life in the country whatsoever.

Thus, when it finds it necessary, the state has no trouble viewing the Entry into Israel Law, Israeli visas and Israeli residency as referring also to entering and remaining in the part of the OPT that was not annexed to Israel. Sometimes it is done right under the Entry into Israel Law itself and sometimes it is done using the fiction that was legislated into the Law Extending the Emergency Regulations (Judea and Samaria – Adjudication of Offenses and Legal Aid) 5727-1967. This fiction does not apply to the 'Attoun family because it lacks the necessary ties to the Jewish people.

One of the characteristics of purposive interpretation, as I have already stated, is that it can lead to a situation in which the same term has different meanings in different contexts. The 'Attoun judgment shows that a literal interpretation, unreasoned, passed off by the justices as being forced upon them by the language of the law, leads to a much harsher result. It leads to a situation in which the same term may be interpreted differently within the same statute. In some contexts, the language of the law seems functionally flexible and in others it turns out to be stiff and cruel.

Adv. Yossi Wolfson

The author is a lawyer and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.