Knesset Enacts New Law Permitting the Revocation of Citizenship due to Breach of Trust or Disloyalty to the State

To:

Honorable Members of the 17^th Knesset

Via fax

Most urgent!

Re: Citizenship Bill (Amendment No. 9) of 2008

The Citizenship Bill (Amendment No. 9) of 2008 (hereinafter: the bill) was submitted to the Knesset on 21 July 2008 and it expected to be presented for its second and third readings in the coming days. In light of the bill's egregious violation of the right to citizenship and other basic rights protected by Israeli constitutional law and international human rights law, we respectfully turn to you and request that you vote against the bill, for the following reasons: 

1. The bill seeks to amend provisions of Article 11 of the Citizenship Law of 1952 (hereinafter: the Citizenship Law) in regard to the revocation of citizenship "acquired on the basis of false information" or of a person who "has committed an action that entails breach of trust vis-à-vis the State of Israel."
2. The right to citizenship, as the [Israeli] Supreme Court has noted, "is a fundamental right. This is accepted in international law … and is also accepted in the law of many countries, which have defined citizenship as a constitutional right … While citizenship has not received a place of honor in Israel as a basic law, there is no doubt that it is a fundamental right because, among other reasons, it constitutes the basis for the right to vote for the Knesset, which is the wellspring of democracy." [1] The importance of the right to citizenship derives, inter alia, from the fact that it is the foundation for exercising many other basic rights. In the words of [Chief] Justice Warren of the [US Supreme Court]: “Citizenship is man’s basic right, for it is nothing less than the right to have rights.”[2]
3. The right to citizenship is a recognized right in international law. The right of every person to citizenship is anchored in the Universal Declaration of Human Rights, [3] as is the prohibition on arbitrary revocation of citizenship. [4] Many other international human rights law instruments also guarantee these rights, including the Convention Relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961).
4. Despite the fact that the explanatory section of the bill explicitly recognizes the right to citizenship as a basic right, and that "revocation of citizenship is an extreme measure that violates a person's liberty and his right to exist in security and dignity in the framework of his family, his home and his land," the arrangement stipulated in the bill makes it much easier to revoke citizenship. Similarly, it violates a series of other basic rights, including the right to a fair hearing, liberty, dignity and family life. 
5. The sponsors of the bill emphasize the transfer of the authority to revoke citizenship from the Minister of the Interior to the Court for Administrative Affairs. However, this is only an ostensible improvement because of the nature of the other directives included in the bill and the severity of the violation of basic rights, as detailed below.
6. The bill allows for the revocation of citizenship of "someone who has committed an action that entails a breach of trust vis-à-vis the State of Israel." The bill provides a very broad definition of the concept "breach of trust," yet, does not require that the individual be criminally convicted of this action. In this context, the US Supreme Court ruled in Trop v. Dulles that the section in the US citizenship law that enables the revocation of citizenship for an act of breach of trust is unconstitutional because it constitutes cruel punishment.[5] In addition, in the Mendoza-Martinez case, the US Supreme Court ruled that it is unconstitutional to initiate a proceeding to revoke citizenship instead of a criminal trial due to the punitive nature of this action. [6]
7. The bill also permits a deviation from the rules of evidence as well as the use of secret evidence during the court hearing on a request to revoke citizenship. This constitutes a grave violation of an individual's right to due process and right to a fair hearing. This violation is particularly critical because of the nature of the right to citizenship, the subject of this proceeding. That is, since this proceeding may result in the revocation of the right to citizenship, which is such a fundamental right, deviating from the rules of evidence and/or use of secret evidence is not proportionate and does not meet the requirement of the limitation clause, which requires the adoption of the least injurious means possible. [7]
8. The bill permits an individual's citizenship to be revoked even if he has no other citizenship, contrary to international law and, in particular, Article 7 of the Convention for Reducing Statelessness, to which Israel is a signatory. The bill states that "it is presumed that someone permanently residing outside of Israel will not remain without any citizenship." However, there is no factual basis for this presumption, because a person may reside for many years outside of the country of his citizenship without acquiring any additional citizenship. Therefore, this provision constitutes a clear case of arbitrary revocation of citizenship, which international law prohibits. The bill does stipulate that if the revocation of citizenship leaves a person without any other citizenship, the court could order that he be granted a permit to reside in Israel.  However, this arrangement does not remedy the international law prohibition on the revocation of citizenship that leaves a person stateless.
9. The bill is also excessively severe in stipulating that permanent residence in Gaza constitutes a reason to revoke Israeli citizenship, given that Israel has prevented the family unification of Palestinians in Israel for over six years, which compelled many citizens to choose between separating the family and moving to the place where his or her spouse resides. If the bill is approved, citizenship could be revoked for those citizens who are prevented by the Citizenship and Entry to Israel Law - 2003 from exercising their constitutional right to family life in Israel and who have been compelled to reside with their spouses in Gaza.

In light of the above, we urge you to vote against the Citizenship Bill (Amendment No. 9) of 2008 as it unconstitutionally denies the fundamental rights of citizens.  

Respectfully,

Orna Kohn, Attorney