21 June 2010
Israeli Supreme Court Rejects Motion for Injunction to Stop Imminent Deportation Process of Palestinian Legislative Council Members from Jerusalem
Attorney Hassan Jabareen, the General Director of Adalah: “The decision is dangerous for all Palestinians in Jerusalem since Israel can easily revoke their residency and deport them based on their legitimate political affiliations or activities. International law prohibits the occupying power from demanding loyalty from the occupied people.”
On 20 June 2010, Israeli Supreme Court Chief Justice Dorit Beinish rejected a motion for injunction filed on 15 June by three members of the Palestinian Legislative Council (PLC) – Mr. Muhammad Abu-Teir, Mr. Ahmad Attoun and Mr. Muhammad Totah – as well as the former Palestinian Minister for Jerusalem Affairs, Mr. Khaled Abu Arafeh, to stop deportation proceedings against them. All four men are permanent residents of Jerusalem. They were elected to the Palestinian parliament on the "Change and Reform" political party list in the Palestinian elections in 2006.
The Chief Justice ruled in a summary decision that there was no point in issuing the requested injunction because "this is not an irreversible measure." In other words, even if the men are deported from Jerusalem they could still appeal even if the Supreme Court strikes down the revocation of their residency status.
Attorney Hassan Jabareen: "It is a central tenet of law not to deport before a hearing. In the case of the mass expulsion of Hamas members in 1992 they stopped the buses to allow the Supreme Court justices to hear the petitions. This is the first time a court refuses to issue an injunction before hearing a petition against expulsion."
The Israeli police notified Mr. Abu Teir in May 2010 that he must leave Jerusalem by 19 June 2010, while Mr. Attoun, Mr. Totah and Mr. Abu Arafeh were ordered to leave by 3 July 2010 and that their residency had been revoked. The Members of Parliament (MPs) were given a choice by the Interior Minister: to give up their membership in the PLC or to have their residency rights in Jerusalem revoked.
The Interior Minister revoked their residency on the grounds of "breach of trust" or disloyalty. This extreme and sweeping measure violates international law, which prohibits the occupying power from demanding loyalty from the occupied people. The deportation also violates the Fourth Geneva Convention, which prohibits the deportation of protected persons from occupied territory.
The motion for injunction was submitted by Attorneys Usama Sa'adi and Fadi Qawasmi, with the support of Adalah Attorney Hassan Jabareen and Attorney Oded Feller of the Association for Civil Rights in Israel (ACRI). It is part of a petition filed to the Supreme Court in 2006 immediately following the Interior Minister's decision to revoke the permanent residency status of the four men on the grounds that they were deemed to be residents of Israel and, therefore, obliged to be loyal to Israel. Nonetheless their actions, membership in the PLC, a “foreign parliament”, proved otherwise and indicated that their allegiance was to the Palestinian Authority. Adalah and ACRI joined the petition in 2007 as amicus curiae, in light of the principle issues raised and the severe violation of fundamental rights entailed by the extreme practice of revoking the status of citizens and residents for “breach of trust.” Despite the issuance of the deportation orders, the case remains pending before the Supreme Court.
The petitioners and amicus curiae argued before the Supreme Court that the Interior Minister's decision to revoke the residency of members of the Palestinian parliament gravely violates their rights, and that the law does not grant the minister the authority to cancel permanent residency for “breach of trust” or due to membership in a foreign parliament.
The Interior Minister's decision of June 2006, the amicus curiae brief argued, violates the constitutional right of the MPs to continue to live in their place of residence and homeland without the threat of expulsion. The expulsion of a person from his or her place of permanent residence violates the constitutional rights to dignity, personal liberty and property. The minister's decision also violates their right to family life by preventing them from continuing to live together with their families in Jerusalem without the danger of separation. The residency of Palestinians in Jerusalem is essentially residency by virtue of birth, which is different in nature than the types of residence permits that are granted to immigrants. Residents of Jerusalem never entered Israel and acquired the status of immigrants. Therefore, their status was never made conditional to any terms, and there is no justification for its cancellation.
The issue is particularly complex as East Jerusalem is occupied territory under international law and the residents of East Jerusalem are protected residents. Moreover, the State of Israel has recognized – since the Oslo Accords – that the Palestinian residents of the eastern part of the city are part of the Palestinian people in the West Bank and Gaza Strip. Consequently, Israel permitted them to vote and be elected in the elections for the PLC and in the selection of the Chairman of the Palestinian National Authority. It was only after the petitioners were elected, and because the election results were not welcomed by the government of Israel, that it decided to cancel their residency status, thereby severely violating their rights.
The cancellation of residency and deportation due to “breach of trust” is an extreme and sweeping measure that does not meet the test of proportionality. It is a draconian measure that is characteristic of dark and totalitarian regimes. There are many means less severe than revoking residency status that are available to the state under the criminal law, which is the sole suitable means to denounce prohibited actions, as long as there is evidence of a criminal act. The wide authority to cancel residency, with which the Interior Minister believes he is invested, should not be accorded to any single person, the organizations argued. This authority may only lie with the judiciary, which operates according to explicit primary legislation, in which clear criteria and a framework for the hearing of arguments are stipulated.
Case citation: H.C. 7803/06, Khalid Abu Arafeh et al. v. Minister of Interior (case pending)