Registering a blank
The Population Registry is concealing its regulations from the Knesset, from the civil rights organizations, from those in need of its services - and sometimes even from the courts
For Tel Aviv District Court Judge Uzi Fogelman, it was really too much already. It's one thing that the Interior Ministry's Population Registry keeps its regulations a secret, especially from the clients to whom these regulations relate; that it frequently disregards those regulations; that it changes them often; and that the registry's various branch offices operate according to different regulations. But what about the fact that for years the ministry concealed the existence of a particular regulation from the courts?
Fogelman dedicated a section to this subject in his ruling, and gave it the provocative and unusual title of: "On regulations written for the drawer and on the duty to publish regulations." He rules there that for years the Interior Ministry refrained from presenting various regulations to the High Court of Justice and other courts. He describes this as "a serious failure, which directly subverts the ability of the courts to carry out effective judicial review of the civil service."
The specific subject of the appeal concerned the regulation stipulating that the unmarried partners of Israeli citizens, who are living in Israel illegally, are required to leave the country before the Interior Ministry will discuss their request for a residency permit. In this case, the people involved were a male couple. At least P., an Israeli citizen, and L., a resident of Colombia, can console themselves that at this stage, L.'s expulsion has been prevented, although their legal battle is not yet over.
Fogelman was not the first judge to discover at a late stage of a court case the existence of covert Population Registry regulations. During the High Court proceedings in the Stemka case, which dealt with a similar ministry regulation that required (married) partners of Israeli citizens to leave the country, the ministry submitted to the court a list of exceptions that exempt the partners from expulsion (for example, in the case of a couple with a common child).
"We didn't know where these criteria came from, who issued them and what their normative value was," wrote Supreme Court Justice Mishael Cheshin in a 1999 ruling. "But it seemed strange to us that these criteria were never brought to our attention until after all the proceedings had ended ... And when they were brought to us, the respondents did not claim that the criteria had been made public ... What is the value of criteria of which the individual is unaware? Needless to say, criteria that lie in the clerk's drawer and do not see the light of day invite arbitrary behavior, and they carry no more weight than a plucked feather."
Knesset in the dark
The courts are not the only ones who do not get to see the rule book. The Knesset doesn't, either. MK Yuri Stern of the National Union failed in his attempts to receive a copy of the regulations. "Under no circumstances did we manage to get them," says the man who until recently was the head of the Knesset Interior and Environment Committee, which is responsible for the Interior Ministry, and who is now the chair of the Knesset State Control Committee. "In my opinion, there are covert rules there, as well as rules that were transmitted orally," he adds.
Why is it so important to publish regulations? Supreme Court Justice Haim Cohen wrote about this issue back in 1961: "There are no secret laws in the State of Israel ... Legislation that is implemented secretly and is kept in secret files is one of the marks of a totalitarian government."
Justice Eliezer Goldberg wrote, in connection with the Nemrodtex case in 1996: "The obligation to publish internal instructions is based on two main reasons. One reason is the recognition of the right of the individual to be aware of the norms that are liable to affect the course of his life." The second reason is "that the publication of the rules according to which the administrative authority works, constitutes a barrier against arbitrary behavior on the part of the government, and against hidden discrimination as well ... The publication of the rules exposes the authority to public and judicial review."
And Justice Cheshin wrote further, in the Stemka ruling, regarding covert expulsion regulations: "The individual who faces expulsion is not aware of his rights. Nor can he receive the advice of an attorney, since in the absence of published instructions, how will the consultant know what to consult? The expulsion policy is carried out in the light of day, but its main points and its details, including exceptions to it, have never been published in an organized manner. This state of affairs ... borders on genuine illegality ... We have repeatedly ruled that a preliminary and essential condition for the determination and application of internal instructions ... lies in bringing them ... to the knowledge of the interested parties."
The power of the clerk
It is doubtful whether there is another ministry branch where those in need of its services are as helpless in terms of lack of familiarity with the rules, and as exposed to arbitrary actions, as the Population Registry. The National Insurance Institute (NII), for the sake of comparison, makes great efforts to inform those in need of its services about its regulations, and about what exactly the insured are or are not entitled to.
Attorney Nicole Maor from the Center for Jewish Pluralism of the Movement for Progressive Judaism says that in every regional Population Registry office there is a loose-leaf binder with the regulations, but it is not accessible to the public.
Apparently, the most important regulation of the Population Registry is the "graduated procedure" (with which the High Court dealt in the Stemka case), whereby foreign partners of Israelis are granted citizenship or residency. An examination carried out by the Association for Civil Rights in Israel (ACRI) in early 2002, in the offices of the Population Registry, indicates that in no way is this procedure brought to the attention of those who turn to the registry.
"In seven offices that were checked, the regulation, or even its main points, is not posted anywhere, cannot be found among the forms or documents available to the public, and is not available in any other form - neither to the general public nor to those requesting status in Israel," asserts the ACRI report on the violation of human rights in the registry, which was published last year and entitled simply "The Ministry."
The situation is especially serious when it comes to the list of documents that the partner of an Israeli citizen or an Israeli resident has to submit. "We encounter people who were not given the list, and each time they are asked for an additional document," says Feller, which causes foot-dragging and a profound feeling of humiliation.
Supreme Court Justice Dorit Beinisch wrote in April 2003, in the Abbas-Batza ruling, which also dealt with the granting of citizenship to partners: "The way in which the regulations are disseminated and publicized at present is not acceptable, and does not conform with the instructions of the law ... There is no uniformity among the various offices, and those who turn to them do not know exactly which documents they have to enclose with their request. The government must repair these defects."
The ACRI report further states that "since then, there has been no change."
In the past there was very selective publication of the regulations on the Internet. "You had to go through a million pages of the Web site, and even if you got to the place, there weren't any regulations there, but only partial ones," Feller explains. "Usually these were useless regulations. Afterward, even these disappeared."
The regulations also change frequently. For example, the procedure for granting an official status to unmarried partners was changed five times in five years. The procedure by which partners of Israelis can obtain citizenship was changed no fewer than seven times since it was instituted in 1997 - and three times in 2003.
The ACRI report shows that "the number of documents required for receiving the permit is enormous, and it differs from one office to another, from one clerk to another, and from one family to another." ACRI claims that "the absence of uniformity among the offices of the Population Registry causes those who turn to it to be subject to the arbitary decision of the clerk handling the case. This undermines the principles of proper administration and the principle of equality. It is not surprising that the requirements relating to partners of Palestinian origin are truly impossible."
What does Bracha Plaut, the internal comptroller of the Interior Ministry, have to say about the regulations of the Population Registry? "Despite the fact that the regulations at the Population Registry constitute the basic infrastructure for providing service to the public, they are not written by any professional body, and there is nobody responsible for updating, integrating and disseminating them. The regulations are not worded clearly and unambiguously, and they do not deal with substantial issues." This situation "causes a lack of uniformity in the handling of cases by the offices, and occasionally, months of delay."
One of the problematic regulations spelled out by the comptroller pertains to elderly parents. Frequently, non-Jewish immigrants come to Israel and ask to bring with them parents who are not formally entitled to immigrate. The regulation for elderly parents has been changed no fewer than three times, mainly in order to deny health insurance and NII payments to them. "The regulation, with all its amendments," writes Plaut, "was worded in a complicated, unclear and imprecise manner," and among other things, does not indicate the minimum age that entitles such a parent to a residency permit. The result: "There are instances in which the handling of a case is delayed for months, because none of those involved is willing to take responsibility in the unclear situation that has been created."
Former interior minister Avraham Poraz is very proud of the fact that many regulations were updated during his term, and notes "that is the first thing I told Sasi Katzir [the director of the Population Registry, who was appointed by Poraz about a year ago - S.I.] to do - to update the regulations."
What happened to the regulations that were written during Poraz's term? Two weeks ago we wrote here about the procedure requiring the granting of permanent residency status to individuals whose citizenship has been revoked. Katzir suspended this regulation a short time after Poraz left the ministry - and that was not the only procedure introduced during Poraz's term that disappeared a short time later.
In early December, Katzir sent the registry's branches a new citizenship regulation concerning partners of Israelis, and ruled that it would replace the previous regulation. The new one, for example, determines that there need be no request for documents unavailable in the country of origin of the foreign partner, such as a conversion certificate or a certificate proving that the person is unmarried. But already on December 15, after the dismissal of the Shinui party's ministers, including Poraz, from the government, Katzir sent a letter that froze the introduction of the new regulation. Attorney Galit Lavi, from the Interior Ministry's legal staff, told attorney Feller of the ACRI that this was not a regulation, but a "draft for comments" only. Feller, however, claims that the absence of the minister was what turned the new regulation into a draft.
The phenomenon is much more widespread. Attorney Nicole Maor heard from the head of the central desk in the Interior Ministry, Elinor Golan, that a series of new regulations introduced during Poraz's term was frozen "at the instructions of the State Prosecutor's Office, and have no validity." In a legal declaration, which Maor signed, Golan also says that the intern of attorney Yochi Gensin, who is responsible for High Court issues in the State Prosecutor's Office, confirmed this. In other words, Poraz did in fact prepare new, relatively less stringent regulations - but they are not being implemented.
The High Court justices are of the opinion that the existence of an organized system of regulations and the fact that they are publicized is insufficient. Justice Beinisch wrote regarding partners' eligibility for citizenship: "I accept the claim of the petitioners that ... because of the great importance of the regulation, and its influence on the rights of many people, it would be preferable if it were to be set down in a bylaw" - in other words, in the form of an amendment. Justice Mishael Cheshin wrote in the Stemka ruling that "the arrangements for residency of the foreign partner in Israel should be anchored in amendments."
Part of an ongoing series.