Analysis from Israel

In 2006, three Palestinian residents of East Jerusalem were elected to the Palestinian parliament on behalf of the Hamas-affiliated Change and Reform party, while a fourth was appointed to the Palestinian cabinet on behalf of that party. Israel responded by revoking their Israeli residency rights.

To most people, this would sound like a no-brainer. Many democracies view serving in a foreign government as grounds for revocation of citizenship because holding a policy-level position in one country’s government is considered to require a level of commitment to that country, which conflicts with one’s loyalty to the other country. Indeed, both America and Israel have such rules for their own citizens in policy-level positions; that’s why, for instance, when Michael Oren became ambassador to the U.S., he had to forfeit his American citizenship, despite the fact that America and Israel are close allies.

But these four Palestinians weren’t just serving in a foreign government; they were doing so on behalf of Hamas – a terrorist organization sworn to Israel’s destruction. This, as the Israeli government correctly argued in court, constituted a massive “breach of trust” toward Israel.

Yet the court, in a 6-3 ruling, decided otherwise. Although the Entry into Israel Law allows the government to revoke anyone’s residency rights “at its discretion,” it said the law shouldn’t be used to revoke their residency for “breach of trust.” Why? Because most East Jerusalem Palestinians were born in Israel and had lived there all their lives, so they deserve greater protection than migrants, who have previously lived elsewhere and whose roots in Israel are therefore shallower.

That East Jerusalem Palestinians merit greater protection than, say, labor migrants, is obviously true. Israel formally annexed East Jerusalem back in 1967 so, logically, most of them should be citizens rather than permanent residents. That they aren’t is due to a unique catch-22: Israel cannot unilaterally grant them citizenship without outraging the international community, which wants them to be citizens of a future Palestinian state.

Most East Jerusalem Palestinians are reluctant to exercise their right to apply for citizenship because doing so is viewed by other Palestinians as treason against the Palestinian cause. The result is an entire class of permanent residents who, as the court rightly said, deserve to be treated more like citizens than permanent residents in many respects.

But in this particular case, the court’s otherwise valid distinction is completely irrelevant. After all, the case wasn’t about ordinary East Jerusalem residents, who, in the absence of evidence to the contrary, could reasonably be assumed by the court to view Israel as their primary home. It was specifically about people who chose to serve in a foreign government on behalf of a terrorist organization, and who thereby declared that their allegiance to this foreign entity supersedes their allegiance to Israel.

If you can forfeit citizenship for serving in a foreign government, you can certainly forfeit permanent residency. After all, Hamas officials surely don’t deserve more rights than Israeli ones. Yet that’s exactly what the court gave them: Hamas officials can now retain dual nationality even though their other nationality is Israel’s bitter enemy, while Israeli officials cannot, even when their other nationality is Israel’s close ally.

Moreover, it’s eminently reasonable to expect people who choose to serve in a foreign government to move to that government’s jurisdiction, unless some unusual obstacle prevents them. In this case, no such obstacle existed, as evidenced by the fact that two of them did relocate to Ramallah after losing their Israeli residency (the other two were arrested by Israel on unrelated grounds).

Even the majority justices appeared to realize how irrelevant their argument actually was. In a truly stunning statement, Justice Uzi Vogelman, who wrote the main opinion, said, “Our interpretative decision didn’t focus on the petitioners’ case specifically, but on an interpretive question of general applicability to residents of East Jerusalem.” Quite how any court can decide a case without focusing on that case specifically is beyond me.

Ostensibly, the case at least has limited application. After all, how many East Jerusalem Palestinians are going to become Hamas legislators of cabinet members? But in reality, the implications are broad, because if even swearing allegiance to a foreign government on behalf of a terrorist organization committed to Israel’s destruction isn’t enough to make a Palestinian lose his Israeli residency and its attendant benefits, what on earth would be? Nothing I can think of. Thus, Hamas supporters in Jerusalem will now be emboldened to step up all kinds of activity on the organization’s behalf, secure in the knowledge that they need not fear expulsion from the country as a consequence.

The court’s judicial activism impedes the government’s ability to set policy in almost every walk of life, as I detailed in Mosaic last year, and several rulings over the past few months rightly outraged many members of Israel’s ruling parties. But last week’s ruling may have been a tipping point: In response, Justice Minister Ayelet Shaked and her Jewish Home party submitted legislation to curb the court’s excesses. Whether it will pass remains to be seen. But this outrageous ruling in defense of Hamas legislators amply shows why it should.

Originally published in Commentary on September 18, 2017

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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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