Center for the Defence of the Individual - HaMoked contests revocation of status of four East Jerusalem residents for “breach of allegiance to the State”: retroactive application of unconstitutional legislation
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HaMoked contests revocation of status of four East Jerusalem residents for “breach of allegiance to the State”: retroactive application of unconstitutional legislation

On January 21, 2016, the Minister of Interior revoked the permanent residency status in Israel of four young men from East Jerusalem accused of involvement in attacks against Israelis, on the grounds “breach of allegiance to the State of Israel”. Three of them are residents of the Sur Baher neighborhood who were later convicted of manslaughter for a stone-throwing incident on September 13, 2015, when they were 18-19, in which an Israeli citizen was killed. The fourth man, from Jabal al Mukabber, was convicted of murder for the killing of three Israelis in an attack on October 13, 2015, on bus no. 78 in the Armon HaNatziv neighborhood of Jerusalem.

HaMoked’s petitions against the revocation of the four’s status were deleted following the High Court of Justice’s decision in a parallel, public-interest case (HCJ 7803/06), in which the court had ruled that the Minister was not authorized to revoke status due to breach of allegiance, but allowed the State to enact an appropriate law. The legislator hastened to act in the matter, and on March 7, 2018, the Knesset enacted an amendment to the Entry into Israel Law, 5712-1952 (Sect. 11A). Under the Amendment, the Minister can revoke the residency status of East Jerusalem Palestinians and even deport them from their native city – despite the fact that they are protected persons under international humanitarian law, who owe no allegiance to the occupying state.

Some two weeks later, on March 19, 2018, the Minister of Interior sent HaMoked notices of his intent to revoke the four’s status pursuant to the new Amendment.

In its written arguments against the Minister’s notices, submitted April 8, 2018, HaMoked asserted these notices were wholly invalid, as the Amendment pursuant to which they were issued was completely contrary to Israel’s obligations under international law, primarily international humanitarian law – especially when dealing with people belonging to the indigenous, protected population of East Jerusalem.

HaMoked also argued that the Amendment was unconstitutional, and did not meet the conditions set in the Limitation Clause (Sect. 8) of Basic Law: Human Dignity and Liberty, which stipulates “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required. HaMoked added that the state authorities had at their disposal a variety of severe enforcement measures that could be employed against any person who had harmed security. And indeed, the four men in question were serving long prison sentences – the retribution agreed upon by society for the commission of unacceptable deeds. It would therefore be a flagrantly unreasonable and disproportionate act to employ the extreme and draconian measure of status revocation.

Furthermore, the revocation of permanent residency leads to the blatant violation of many fundamental rights, among them the rights to health, dignified living and property, rights innate to every person, even those who have committed the gravest crimes. “The promise of fulfilling these rights”, wrote HaMoked, “disappears once the person’s permanent status in their ancestors’ native land is revoked, even if this status is substituted by a lesser residency permit”. In this context, it must be noted that two of the four Jerusalemites are liable to become stateless, and therefore, under the Amendment, should receive some kind of permit or status – which does not afford the rights that come with the status of permanent residency – allowing them to stay in the country.

HaMoked added that “breach of allegiance”, as defined in the amended Entry into Israel Law, is an abstract term, with no clear criteria for implementation, which in effect enables the arbitrary revocation of permanent residency status. HaMoked also asserted that particularly in these cases, the notices sought to retroactively apply a recently-enacted law for deeds perpetrated more than two years earlier. This in clear contradiction to Israeli jurisprudence, whereby, as a rule, an act of legislation should apply henceforth from the time it is enactment. All these points highlight the problematic nature of this kind of legislation, which may be implemented arbitrarily, without thorough consideration of each case on its merits.