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Published online by Cambridge University Press: 04 July 2014
In 1988, at the beginning of the Palestinian Intifada, a deportation case came before the Israeli Supreme Court (sitting as a High Court of Justice). The facts of the case presented no great difficulty, but the Court took the opportunity to declare the law governing the previously uncertain residence status of East Jerusalem Palestinians. The judgment of the Court was given by Barak J. In a remarkable passage, the learned judge not only examined the legislatively defined conditions for the loss of permanent residence, but went on to discuss the subsistence and expiry of this status in more fundamental terms, focusing on the “reality” of the licence-holder's presence in Israel. The case thus introduced a second, judge-made test for the loss of permanent residence, which appears to exist in uneasy parallel with the test provided by the legislature. This essay questions the propriety and the quality of Barak J.'s innovation, and examines some of its consequences.
1 Mubarak Awad v. The Prime Minister (1988) 42(ii) P.D. 426. The designation “High Court of Justice” indicates that the Supreme Court sits to exercise its supervisory jurisdiction over the legality of administrative action.
2 Now President of the Supreme Court.
3 See, for example, the editorial comment in Zamir, Itzhak and Zysblat, Allen, eds., Public Law in Israel (Oxford, 1996) passimGoogle Scholar.
4 Pursuant to Art. 22 of the Covenant of the League of Nations. From 1917 until 1922 Palestine was under de facto British military rule. During this time the eastern sector of the territory became the independent state of Transjordan (later, the Hashemite Kingdom of Jordan).
5 The change in East Jeursalem's status was effected by the Knesset amending the Law and Administration Ordinance to add a new sec. 11B, which states: “The law, jurisdiction and administration of the State shall extend to any area of Eretz Israel [the Land of Israel] designated by the Government by decree” (21 L.S.I. 75). On the following day, the government ordered that Israeli law, jurisdiction and administration be extended to East Jerusalem (see Law and Administration Order (No. 1), 1967, Collection of Regulations (Subsidiary Legislation), 1966/67, no. 2064, 28 June 1967, at 2690.
6 See, for example, Lauterpacht, Elihu, Jerusalem and the Holy Places, (London, 1968)Google Scholar; Schwebel, Stephen, “What Weight to Conquest”, (1970) Am. J. Int'l L. 344CrossRefGoogle Scholar; Blum, Y.Z., “Zion Has Been Redeemed in International Law”, (1971) 27 Hapraklit 315Google Scholar; Blum, Y.Z., “East Jerusalem is Not Occupied Territory”, Hapraklit 28 (1972) 183Google Scholar; Blum, Y.Z., The Juridical Status of Jerusalem (Jerusalem, 1974)Google Scholar. Blum's views were chiefly contested by Yoram Dinstein, who argued that sovereignty remained with Jordan. See Dinstein, Yoram, “Zion Shall Be Redeemed in International Law”, (1971) 27 Hapraklit 5Google Scholar; Dinstein, Yoram, “‘And the Redeemed is Not Redeemed’, or ‘Not Demonstrations But Deeds’”, (1971) 27 Hapraklit 519Google Scholar.
7 See, for example, Cattan, Henry, Palestine and International Law (London, 2nd ed., 1976)Google Scholar; Cattan, Henry, Jerusalem (New York, 1981)Google Scholar; Cattan, Henry, The Palestine Question (London, 1988)Google Scholar; Mallison, W.T. and Mallison, S.V., The Palestine Problem in International Law and World Order (London, 1986)Google Scholar; Mallison, W.T. and Mallison, S.V. “The Status of Jerusalem as a Question of International Law”, in Kochler, H., ed., The Legal Aspects of the Palestine Problem With Special Regard to the Question of Jerusalem (Vienna, 1980)Google Scholar.
8 See, for example, the UN's first Resolution on the topic, adopted at an emergency session of the General Assembly convened one week after the Israeli legal moves: GA RES 2253 (ES-V) UN GAOR. Later Resolutions substantially make the same points, while censuring Israel for failure to comply with earlier Resolutions. For further detail, see Lapidoth, R. and Hirsch, M., eds., The Jerusalem Question and its Resolution: Selected Documents (Jerusalem, 1994)Google Scholar.
9 Rouweidi and Maches v. Military Court, Hebron District (1970) 24(ii) P.D. 419.
10 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949.
11 For discussion both of the applicability of the Convention and the extent of its prohibition on deportation, see Al Afu v. Commander of IDF Forces in the Judea and Samaria Region (1988) 42(ii) P.D. 4, affirming the position on the application of the Convention adopted by the Court in Abu Awad v. Commander of IDF Forces (1979) 33(iii) P.D. 309. For academic discussion of the role of international law in the government of the territories, see Shamgar, Meir, ed., Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, 1982)Google Scholar; Dinstein, Yoram, International Law and the State (Tel Aviv, 1971)Google Scholar.
12 Israel held a census in East Jerusalem shortly after its capture. Inclusion required individuals to be physically present in the city at the time the census was conducted, and to be resident there. Israeli identity cards were granted to those who fufilled these criteria.
13 It is to be noted that the receipt of citizenship requires the swearing of an oath of allegiance to the State of Israel. For further materials on the collective identity of the Palestinian minority within Israel, see Rouhana, Nadim, Palestinian Citizens in an Ethnic Jewish State: Identities in Conflict (New Haven and London, 1997)Google Scholar. Although this study deals principally with the position of Arab Israeli citizens within the pre-1976 borders of the state, its insights into the equivocations which the situation produces both for Palestinian citizens and the majority population are of considerable relevance to the present issue. The book is also recommended for its particulary full bibliography.
14 The Legal and Administrative Matters (Regulation) Law (Consolidated Version), 1970.
15 B'tselem, at 12-13. Possession of an identity card entitled the holder to the issue of a “laissez passer” at the frontier. The nature of these travel permits is examined in greater detail below.
16 See B'tselem, at 8, where a brief synopsis is given of the problems facing Palestinians in Jerusalem. More detailed information is given in B'tselem, , “A Policy of Discrimination: Land Expropriation, Planning and Building in East Jerusalem” (Jerusalem, 1997)Google Scholar, which again concentrates on the social injustices faced by Palestinians who choose to stay in East Jerusalem. A heightened reliance upon family, business and study links abroad is, of course, a normal feature of any community in diaspora.
17 The Ministry of the Interior denies that its policy is new, and the Supreme Court has, until recently, accepted its assertion: see Bustani v. Minister of the Interior (unreported) para. 8. Court proceedings are currently pending on this point. However, it appears from the State Comptroller's report for 1996 (Annual Report No. 47) (2nd B'tselem Report, at 10) that significant changes were in fact notified to the East Jerusalem office by the Ministry's legal advisor in a directive issued in December 1995. The State Comptroller apparently finds nothing objectionable in the retroactive change of policy, describing the changes as “better late than never”. From 1995 to 1996 the number of PR licences found to expire increased from 96 to 689.
18 The test is generally stated to require proof of a centre of life within Israel. Practically, though, only proof of a centre of life in Jerusalem is likely to be involved, since the Ministry of the Interior regards the territories as “outside Israel”, and few East Jerusalem Palestinians settle elsewhere within the pre-1967 borders of the State.
19 The Minister of the Interior stated on 29 January 1997, in response to a question from Amnon Rubinstein M.K., that “[s]ince the law and the High Court of Justice hold that the residence expires automatically, I do not think that the law requires a right to be heard”: B'tselem, at 17. The Supreme Court has not commented on this assertion.
20 Ibid., at 11. See also the 2nd B'tselem Report, which deals in particular with the impact of the policy on health insurance.
21 Ibid., at 14.
22 The Minister of the Interior has stated in the Knesset that records are not kept of the number of identity cards forfeited, although it was estimated that some 600 cases were involved: B'tselem, at 12. According to Gellman, Barton, “For Arabs of East Jerusalem, an ID War with Israel” (International Herald Tribune, 4 June 1997) 1047Google Scholar cases were “acknowledged by the government since last year”. According to the 2nd B'tselem Report, the Ministry of the Interior provided the figures for East Jerusalem residence revocations following a petition to the Court. The combined figure for 1996, 1997 and the first eight months of 1998 is 1641. It is unclear whether approximately 500 other files still under review should be included in this figure or not.
23 The 2nd B'tselem Report notes that the Ministry's newly-released figures “apparently relate only to persons who have received notification of the decision, so the number of Jerusalem residents required to leave the city is many times higher”: p. 11.
24 Interministerial Committee to Examine the Rate of Development for Jerusalem, Recommendation for a Coordinated and Consolidated Rate of Development, (Jerusalem, 1973) [in Hebrew]Google Scholar.
25 See Dumper, Michael, The Politics of Jerusalem Since 1967 (New York, 1997) 54Google Scholar: As well as a high natural growth rate amongst the Palestinian Arabs, the absence of any meaningful economic development in other parts of the West Bank has meant that Jerusalem has acted like a magnet attracting scores of Palestinian Arabs from the surrounding areas who move to the Jerusalem region weekly. Indeed, a recent report by the Municipality has concluded that: “… If Israel does not want to lose the demographic race [in Jerusalem], she must “run faster”. She must create the conditions which will enable the Jewish population of Jerusalem to grow at a faster rate than in the past.
Thus, since 1967, while the population of Israeli Jews in Jerusalem has grown by a prodigious 94 percent, the population of Palestinian Arabs has grown by 111 percent. Significantly, the most recent reports show that 50 percent of this Palestinian Arab population is below 18 years of age, that is, just before the peak child-producing years. Striking as the Palestininan Arab growth rate has been, a demographic explosion among Palestinian Arabs in the Jerusalem region is about to occur. This underlying trend, which is poised to jeopardize the Israeli demographic dominance, explains the alarm frequently expressed in Israeli official circles.
26 Gellman, op. cit. Gellman quotes the minister as stating in an interview: “We will fight with all our power in the war over Jerusalem, whether through this law or through the building and planning law or another law. … It does not matter what means I use or other ministers use”.
27 On his final visit to Israel the petitioner had entered on a tourist visa. His application to extend the visa was refused, and it expired on 20 November 1987.
28 Awad, para. 5.
29 Awad, para. 18. Relying on Gideon Ben-Israel v. State of Israel (1985) 39(ii) P.D. 45, the court stated that the decision to deport was subject to all the usual controls on the discretionary exercise of power.
30 Awad, para. 9.
31 Entry into Israel Law, 1952, sec. 1(b). An oleh is a Jew who exercises the right given by the Law of Return, 1950, to come to Israel to settle.
32 Awad, para. 9. The “artificial jurisdictional ideas” proposed by the petitioner for filling the apparent lacuna in Israeli law were the application of English law or international law. The formal relevance of English law within the Israeli system was ended by the Law and Administration (Amendment No. 14) Ordinance, 1972. The charge of artificiality can at least as justly be levelled against the approach of the Court itself, since it is obliged to ignore the probable conflict between domestic and international law on termination of residence.
33 Awad, para, 8. The point is, of course, intended to lend credibility to the notion that permanent residence without entry is a conception which is easily comprehended by the 1952 Law, without any need for strained interpretation. Barak J.'s assertion is difficult to follow, though. Naturally, it is correct that sec. 1 is divided into two subsections (following amendment in 1965-6); the first deals with entry into Israel and the second with presence in Israel. While Barak J. appears to conclude from this that entry and presence are discrete concepts, the more probable reason for the division is that it was a necessary drafting device used to accomodate the peculiar nature of oleh visas and oleh certificates in the course of a section which has also to deal with ordinary visas and residence permits. A far stronger indication to the effect that the Law does not contemplate the divisibility of entry and presence is given in section 2. In relation to each type of residence licence which the Minister is empowered to grant, sec. 2 refers to the granting of a visa, as well as a licence. The visa can only be for the purpose of entry into Israel. For further indication that the Law does not establish separate regimes for those who enter and those who remain in Israel, see the wording of the transitional provision in sec. 18 (a): “This Law shall apply to a person who enters Israel after the coming into force thereof and to the residence of such a person in Israel”. The legislature naturally saw no need to create a parallel provision dealing with those resident in Israel without having entered, because the application of the Entry Law to such individuals was not foreseen.
34 Equality (or non-discrimination), which was previously viewed as one of the fundamental “soft” principles of Israeli common law (ie. it would guide statutory interpretation and the development of the common law, but would not be upheld against a clearly worded Law) is now taken to be underpinned by the Basic Law: Human Dignity and Liberty, 1992; see on this point, for example, Hupert v. Yad Vashem (1994) 48(iii) P.D. 353, 360-363. The application of the principle to the problem before the court in Awad is not straightforward, since not two but three groups are involved — citizens, home-born non-citizens, and immigrant non-citizens. The creation or maintenance of equality of legal status is principled only in so far as it ratifies a prior political judgment mandating the relational definition of particular rights (“these are alike and should therefore be treated alike”). The decision to safeguard equality among all non-citizens owes as much to a measure of difference as it does to a substantive perception of similarity (“none of them are like this, so they should all be treated the same”). It is questionable whether the distinction between a citizen and a non-citizen should outweigh the distinction between immigrant and home-born non-citizens. At all events, Barak J.'s solution does not obviously create equality as between the latter two groups; home-born non-citizens are deemed to have received permanent residence rights automatically, whereas immigrant non-citizens continue to rely on a discretionary award.
35 Awad, para. 10.
36 Barak J. appears to conflate these two sections, regarding the Regulations passed pursuant to sec. 14 as conditions prescribed in a residence permit pursuant to sec. 6(2). While the notion of an implied permit granting rights is quite acceptable, it is harder to agree that this fictional permit must be deemed to contain on its face implied restrictions whose breach avoids those rights. The second of these implications cannot easily be reconciled with the rule of law. The difficulty goes unremarked.
37 In the original the final words are “ve-hishtaka' bimdina michutz le-Yisra'el”.
38 Awad, para. 11.
39 The grounds for this assertion are not detailed in the judgment.
40 Ibid., at para. 13. If the respondent's submissions on an alternative means of assessing the petitioner's status were made by way of insurance against the possible success of the petitioner's ultra vires challenge, the ordinary judicial response upon dismissing the ultra vires challenge would have been to decline to express an opinion on the alternative submission.
41 In the original the expression is “metziut chayyim”.
42 See Bennion, Francis, Statutory Interpretation (London, Dublin & Edinburgh, 3rd ed., 1997) 175Google Scholar.
43 The position is well expressed in the words of Bach J. in Wagnin v. The Military Appeals Court (1983) 37(ii) P.D. 393, at 416: “When the language is clear and when the proposed interpretation does not lead in practice to an absurd or illogical result, then there is no room for engaging in speculations about the presumed policy of the legislator”. Barak, J. himself cites this remark (with apparent approval) in his book Judicial Discretion (New Haven & London, 1987) 59Google Scholar, but goes on to say “Indeed, these expressions — clear, obscure, absurd, illogical, manifestly — are themselves obscure and open-textured”.
44 Golan v. Minister of the Interior (1962) 16(x) P.D. 1969 is cited in support of this view. The case is not concerned with the same issue, though; the passage presumably relied upon by Barak J. (at 1972) decides the question whether it is necessary formally to revoke an “oleh's” permit (immigration permit) although there is no dispute but that the aliyah (act of Jewish immigration into Israel) is over, the former oleh returns to Israel, and it is sought to give him or her a tourist visa or a temporary residence permit. There is little point in seeking guidance from this on the proper approach to a disputed forfeiture which creates a liability to deportation.
45 In English law, which is certainly no more innovative than Israeli law on matters of statutory interpretation, even the substantive purposes of a given Act of Parliament may be taken to alter over time: see De Smith, , Woolf, and Jowell, , Judicial Review of Administrative Action (London, 5th ed., 1995) 338–340Google Scholar.
46 Barak J.'s failure to question the appropriateness of the expiry procedure apparently created by the Entry into Israel Law for application to common law as well as regulatory reasons for expiry is one of the most disturbing aspects of the decision in Awad.
47 The lengths of licence mentioned by Barak J. in para. 14 are those which sec. 2 of the Entry into Israel Law empowers the Minister to grant.
48 This is not to claim that no legal system can provide for a right to permanent residence to be lost. This clearly can be done; the concept of “abandonment of residency” exists, for instance, in US immigration law. Here, however, the right to permanent residence is not predicated simply on its exercise. Lengthy absence abroad will defeat permanent residence, but not if it is sanctioned in advance by the grant of a re-entry permit. Primacy is thus given to the legal character of the absence, which is assessed in accordance with well-publicised rules. Where the factual character of the absence itself must be decided (for the purposes of the grant or refusal of a re-entry permit, for instance), the immigrant's continuing intention to assert the right of permanent residence is of the essence. In the US system, therefore, the confirmatory power of fact is dependent upon a legally and subjectively constructed context. Barak J. seems to have sought some such realism and subtlety in Awad, but without success.
49 Barak J. discusses the problem of retroactivity elsewhere: see, for example, Barak, supra n. 43, at 171, where he states that the judge must take the factor of retroactivity into account when exercising discretion.
50 Sec. 11.
51 Awad, para. 9.
52 Administrative Procedure Amendment (Statement of Reasons) Law, 1958, sec. 9(b).
53 See, for example, Fathiya Shqaqi v. Minister of the Interior, Takdin Elyon 95(ii) 1614; Bustani, supra n. 17.
54 See the respondent's statement of case in Amirah Sahar v. Minister of the Interior (unreported), para. 16, where Awad is cited as authority for looking to a common law test of status outside the Regulations (without further indication of the basis of such an approach). On other occasions the Ministry lays greater stress on the Regulatory test: see, for example, the answer given by the Minister of the Interior on 7 October 1996 to the Knesset question tabled by M.K. Naomi Chazan, where both Regs. 11A and (c) are expressly mentioned (B'tselem, at 14). In the Ministry's standard form letter headed “Expiration of Permanent Residency Permit” the common law test is set out, while the PR licence expiry is said to have occurred “pursuant to the Entry into Israel Law, 1952, and the Entry into Israel Regulations, 1974”.
55 Supra n. 53.
56 Ibid., at 615.
57 Takdin Elyon 95(i) 1642.
58 Takdin Elyon 94(i) 1310.
59 Takdin Elyon 94(i) 1288.
60 B'tselem, at 18. This contention was accepted by the Court in Bustani, supra n. 17, at para. 8.
61 Ibid., at 35 (reproducing a standard form Ministry letter headed “Expiration of Permanent Residency Permit”).
62 Ibid., at 38 (reproducing a letter of response to the B'tselem report from the Ministry's spokesperson and Head of Public Relations, dated 2 April 1997). The existence of this policy would seem not to have been made clear to the court in Awad, since Barak J. calculated the period of the petitioner's absence from the state to include years in which he was undertaking higher education.
63 Ibid., at 24-26, 28-33 and esp. 36 (reproducing a standard form Ministry letter entitled “Re: Request for family unification”).
64 Ibid., at 14 (the response to a Knesset question tabled by M.K. Naomi Chazan in which the Minister of the Interior stated (on 7 October 1996) that “regulation 11A and regulation 11(c) also apply to persons who have settled in Judea and Samaria”).
65 Ibid., at 24-26, 28-33 (testimonies from representative cases) and at 35.
66 Ibid., at 38.
67 Ibid., at 35. It now appears that the Ministry of the Interior has formally altered its policy in this regard: see the 2nd B'tselem Report, at 10, citing a reference in the State Comptroller's Report for 1996 (Annual report No 47) to a meeting held in December 1995 in the Attorney-General's office at which it was decided that the territories should be regarded as “outside Israel” for the purpose of PR licence expiry. There is high irony in the executive's readiness to recognise the territories as an independent state for the present purpose while the current Israeli government struggles to prevent the recognition of such a state in the international arena. In the circumstances the imputation of an improper purpose or an extraneous consideration behind the 1995 change of policy would surely be hard to deny.
68 In this respect the card's drafting is unhelpful. The three year period of validity is, of course, itself subject to the Entry into Israel Regulations, and therefore the expiry of permanent residence pursuant to the Regulations may curtail the period of the card's effective validity (it is less clear that purported expiry pursuant only to the common law criteria would have the same effect). The cases of Bustani and Amirah Sahar were essentially attempts to argue for the inversion of this hierarchy.
69 According to the 2nd B'tselem Report (at 15) the individual is now required to discharge this burden of proof upon making any application to the Ministry of the Interior's East Jerusalem office, even where the proof has been accepted in a previous matter.
70 B'tselem, at 20.
71 Supra n. 17.
72 In English law, the court's power to intervene appears not to be predicated upon the presence of a discretional element. See R v. Inland Revenue Commissioners, ex parte Preston [1985] AC 835, at 864, where it was suggested by Lord Templeman that the court had power to order an authority to abstain from exercising a discretion or from performing a statutory duty, where the unfairness of either action would amount to an abuse of power.
73 See, for example, in English law, R v. Metropolitan Police Commissioner, ex parte Blackburn [1968] 2 QB 118, at 136, where Lord Denning MR observed that although chief officers of police had a duty to enforce the law, there were many fields in which they had a discretion as to how best to discharge that duty. See also R v. Inland Revenue Commissioners, ex parte Preston, supra n. 72.
74 Supra n. 62.
75 See, in English law, Lord Loreburn's well-known statement that the duty to act in good faith and listen fairly to both sides lies upon “everyone who decides anything”: Board of Education v. Rice [1911] AC 179, at 182. In Israeli law, see (for example) Gingold v. National Labour Court (1963) 35(ii) P.D. 649, at 654: “A basic right of a person in Israel is that a public authority that harms the status of a person shall not do so unless it grants that person the opportunity to state his or her case … In every instance in which a public authority seeeks to change a person's status, it must act fairly towards that person …” (per Barak J.).
76 For example, considerations other than that the protection afforded will improve the accuracy of decision-making.
77 Supra n. 26.
78 The details have been taken chiefly from B'tselem's selection of “representative cases” (testimonies from individuals who have had dealings with the Ministry of the Interior on the subject of licence expiry) and from the documents reproduced in Appendices 1 and 2 of the B'tselem report (standard form letters from the Ministry of the Interior).
79 The Supreme Court has held that it is incumbent upon any person occupying a public position to deal with applications with the necessary speed and diligence, so that unreasonable delay is tantamount to an unjustified rejection of the application: see Dayan v. Ramat Gan Municipality (1953-4) 9 P.D. 1237, at 1239 (referred to in Public Law in Israel, at 216). It is therefore disturbing to find that in one case a licence-holder was told that a decision on centre of life “can take months and even years” (2nd B'tselem Report, at 9, testimony of Sana Abu Zanet).
80 Permanent licence holders who appear, according to the Ministry's records, to live in Jordan, seem routinely to be informed only that they must leave Israel: see the 2nd B'tselem Report, at 8-9 (testimony of 'Atar Kamal); and at 9 (testimony of Sana Abu Zanet). Only where the licence-holder challenges this instruction is he or she told that they may prove that their centre of life remains in Jerusalem.
81 In Gingold v. National Labour Court, supra n. 75, Barak J. declares that the obligation upon public authorities to act fairly towards a person whose status is threatened “imposes on the authority a duty to grant the person the opportunity to be heard”. The Minister of the Interior appeared to deny this when he stated on 29 January 1997, in answer to a Knesset question, that “[s]ince the law and the High Court of Justice hold that the residency automatically expires, I do not think that the law requires a right to be heard”: B'tselem, at 17.
82 It may be, for instance, that the licence-holder is unable to provide a “contract of purchase/lease of apartment in the name of the applicant since the date of marriage” as required by the Ministry. Numerous explanations for this failure, all of them compatible with continued residence in East Jerusalem, can easily be envisaged.
83 B'tselem, at 38.
84 Abtasa Yusuf v. Minister of the Interior 97(ii) Takdin Elyon 681; Maqari Oliver v. Minister of the Interior 97(ii) Takdin Elyon 262; Jabber Aymen v. Minister of the Interior 97(ii) Takdin Elyon 360.
85 2nd B'tselem Report, at 13.
86 Since this article was written the Supreme Court has adjourned a petition on PR licences brought by five Israeli human rights organisations and ordered the Ministry of the Interior to review its licence revocation files for 1989 and 1991. The Court (headed by Barak P.) appears to wish to determine whether the Ministry's policy towards licence revocation has changed or not. Proceedings are expected to be resumed towards the end of 1999.
87 An amendment to the Entry into Israel Law, proposed by 'Azmi Bshara MK, would forbid the Minister of the Interior to revoke the PR licence of a person born in Jerusalem, his spouse or child. The Bill passed its first reading in the Knesset on 9 July 1997 as Proposed Law 1441/P. It is unlikely to be adopted.