The Association for Civil Rights in Israel (ACRI) and Adalah – The Legal Center for Arab Minority Rights in Israel submitted their legal opinion on 9 May 2007 to the Supreme Court of Israel as amicus curiae in the case of an appeal by members of the Palestinian Legislative Council who reside in East Jerusalem against the cancellation of their residency in Israel. The human rights organizations emphasize in the brief that the Israeli 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 residency of Palestinians living in East Jerusalem has a special status, which is of a different nature than that of immigrants, the organizations argued. The amicus brief was jointly written by Attorneys Oded Feller and Dan Yakir of ACRI and Attorney Hassan Jabareen of Adalah.

In December 2006, the Supreme Court accepted the request of Adalah and ACRI to join the case 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.” To date, Israeli courts have not discussed these questions. The two organizations presented arguments concerning the special complexity of the issue of the cancellation of the status of residents of East Jerusalem in general, and of the East Jerusalem residents elected to the Palestinian Parliament in particular.

The Interior Minister’s decision of 30 June 2006, the opinion argues, violates the constitutional right of the Members of Parliament to continue to live in their place of residence and homeland without the threat of expulsion. The expulsion of a person from his place of permanent residence violates his constitutional rights to dignity, personal liberty and property. The minister’s decision also violates the rights of the Members of Parliament as well as the rights of their family members to family life by preventing them from continuing to live together in East Jerusalem without the danger of separation. The residency of Palestinians in East Jerusalem, the Attorneys emphasize and reiterate, 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 East Jerusalem, the opinion argues, 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 human rights organizations also stress in the opinion that the issue entails a particularly complex status, because East Jerusalem is occupied territory under international law and the residents of East Jerusalem are protected residents. Moreover, the State of Israel has recognized – from 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 Palestinian Legislative Council and in the selection of the Chairman of the Palestinian National Authority. Only after the petitioners were elected, and because the election results were not welcomed by the government of Israel, did it decide to cancel their residency status, thus severely violating their rights.

The opinion argues that the cancellation of residency due to “breach of trust” is an extreme and sweeping measure that does not meet the test of proportionality. The cancellation of status for this reason is a draconic measure that is characteristic of dark and totalitarian regimes. The state must not cancel a person's residency due to suspicions that have arisen against him. There are many means of enforcement 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 organizations explain that the wide authority to cancel residency, with which the Interior Minister believes he is invested, is draconian and should not be accorded to any one person. 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.

ACRI and Adalah contend that in these circumstances, the revocation of the residency of Palestinian Members of Parliament constitutes a severe violation of their basic rights and undermines the Interior Minister’s obligation to act in good faith, and with decency, integrity and equality.

The legal opinion was submitted as part of case H.C. 7803/06, Khalid Abu Arafeh et al. v. Minister of Interior.

The parliamentarians concerned - Mr. Muhammad Abu-Teir, Mr. Ahmad Attoun, Mr. Muhammad Totah and Mr. Khaled Abu-Arafeh, who is also the Palestinian Minister of Jerusalem Affairs - were all elected on the list of Hamas (Change and Reform) in the January 2006 elections to the Palestinian Legislative Council.

The Amicus Brief (H)