Israel's High Court Overturns Recall of Hamas Legislators’ J’lem Residency After 11 Years

The government now has six months to pass a new law in order to permanently revoke the residency of four East Jerusalem Palestinians

Hamas' Mohammed Abu Tir at his East Jerusalem home after his release from an Israeli jail, May 20, 2010. Israel revoked his Jerusalem residency and he is now imprisoned without charges.

The High Court of Justice has overturned the Interior Ministry’s 2006 decision to strip four East Jerusalem Palestinians of their Israeli residency. The ministry had acted against three of them because they had been elected to the Palestinian legislature on a ticket affiliated with Hamas, while the fourth had served as a minister in the Palestinian cabinet on behalf of that ticket.

Then-Interior Minister Roni Bar-On said their actions constituted breach of trust against the state. But in its 6-3 ruling on Wednesday, the court said the minister had no authority to revoke their residency on such grounds.

Nevertheless, it deferred implementation of its decision by six months to give the Knesset time to pass legislation that would allow the four to indeed be stripped of their residency.

In January 2006, Mohammed Abu Tir, Mohammed Amran Totah and Ahmed Mohammed Atoun were elected to the Palestinian parliament on the Hamas-affiliated Reform and Change ticket, while Khaled Abu Arafeh, who didn’t run, was appointed to the Palestinian cabinet on behalf of the party. Four months later, Bar-On told them he would revoke their permanent residency unless they resigned their parliament and cabinet seats, which they refused to do. Thus in June 2006, their residency was revoked on the grounds that they were “key activists in the institutions of a terrorist organization, Hamas.”

Today, Abu Arafeh and Totah live in Ramallah. Abu Tir and Atoun are in administrative detention – imprisoned without charges – in Israel.

All four immediately petitioned the court against Bar-On’s decision. In August 2008, while their petition was still pending, they asked Bar-On’s successor, Meir Sheetrit, to restore their residency on the grounds that they no longer served in the Palestinian legislature or cabinet. But in January 2009, Sheetrit rejected their request, a decision upheld by all of his successors.

Israel had also arrested all four shortly after the 2006 election. In 2010, after their release, the state told the court they had all resumed activity in Hamas, including activity that could endanger the public’s welfare.

The petitioners argued that the interior minister had no right to revoke their residency due to “breach of trust.” They also said the decision was extremely unreasonable and disproportionate, since revoking residency is a drastic step. The petition was joined by the Association for Civil Rights in Israel and Adalah-The Legal Center for Arab Minority Rights in Israel.

The state argued in response that permanent residency requires some affiliation with and “basic loyalty” to the country, which these four had violated.

Justice Uzi Vogelman, writing for the majority, agreed with the petitioners that the law as currently written doesn’t allow the minister to revoke the residency of East Jerusalem Palestinians for breach of trust. The Entry to Israel law was meant to apply to people who moved to Israel, he said, not those who were born here or became residents through no volition of their own when Israel captured East Jerusalem in 1967.

Revoking the residency of an East Jerusalem Palestinian is an “extremely severe” infringement on his basic rights, including the rights to dignity, freedom and family life, Vogelman wrote. It is a much greater infringement than revoking the residency of someone who moved to Israel, because Palestinians’ roots in the city run much deeper. “Many were born and raised in East Jerusalem and have lived there for decades, as have their parents and sometimes their grandparents,” he explained.

Vogelman said he didn’t ignore the fact that “the petitioners were elected on behalf of the terrorist organization Hamas, which rejects the existence of the State of Israel and seeks to destroy it through armed struggle,” adding that “it goes without saying” that Israel shouldn’t assist Hamas. Nevertheless, he said, the ruling “didn’t focus on the petitioners’ case specifically, but on an interpretive question of general applicability to residents of East Jerusalem.”

The Knesset can pass new legislation on this issue, as long as it doesn’t violate the Basic Law on Human Dignity and Freedom, he added.

Supreme Court President Miriam Naor and her designated successor, Esther Hayut, both concurred with Vogelman’s opinion, as did Justices Yoram Danziger, Daphne Barak-Erez and Salim Joubran. Justices Elyakim Rubinstein, Neal Hendel and Hanan Melcer dissented.

Attorney Fadi Kawasmi, who represented all four petitioners, praised the ruling, saying it would have important ramifications for other East Jerusalem Palestinians whose residency rights have been revoked or threatened.